I thank the Deputy for their question regarding the Assisted Decision-Making (Capacity) Act 2015.
Safeguarding the rights of those with diminished decision-making capacity and privileging their will and preferences were key principles in the development of the new framework of supported decision-making arrangements introduced by the 2015 Act. These safeguards include the requirement for a functional assessment of the adult’s decision-making capacity, statutory notice periods before an arrangement can be registered by the Decision Support Service, reporting and oversight measures once the arrangement has been registered, and regular reviews of an individual’s capacity where a decision-making representation order has been put in place.
In that regard, a decision-making representation order is the highest tier of decision support arrangement available under the Act and is therefore subject to the strongest safeguards. Other arrangements available under the Act include decision-making assistance agreements and co-decision-making agreements.
It is important to note that parents and carers are not excluded from becoming a decision supporter for an adult under any of these arrangements. While there is a requirement under section 36 of the 2015 Act for parents and carers to seek the consent of the Court prior to making an application for a decision-making representation order, there are no barriers to a parent or carer becoming an adult’s decision-making representative if the Court determines that this is in line with the adult’s known will and preferences and if that person or persons are deemed suitable to act as such. The Court will also consider the desirability of preserving existing relationships within the family of the individual, the relationship (if any) and compatibility of the individual and a proposed representative, and whether a proposed representative will be able to carry out the necessary functions. The Court will also have regard for the skills, qualifications and experience of the proposed representative, and whether or not they have the capability of managing the individual’s property and affairs if required. Where no suitable representative is able or willing to act as a decision-making representative, the Court will request that the Decision Support Service (DSS) nominates a representative from their panel of decision-making representatives to take on that role.
I appreciate the role of many parents and carers as strong advocates for adults with diminished capacity. However, the 2015 Act was developed to ensure that the rights of those with capacity difficulties are placed front and centre, to account for situations where parents and carers may not have maintained such a strong relationship with the adult, and where the absence of the Court process may be a safeguarding risk. This ensures that the appropriate and necessary safeguards are in place to protect the rights and autonomy of those with diminished decision-making capacity.
A review of the operation and effectiveness of the 2015 Act is provided for under the legislation and is also a commitment in the Programme for Government. This review will take place in consultation with a wide range of stakeholders and will be informed by feedback from those with lived experiences of the provisions of the Act.
