In this, Matheson's final Knowledge Insights Series event for the first half of 2023, John Gill, partner and head of Matheson's Private Client group, Ian O' Mara, partner (Financial Institutions Group) and Maeve Lochrie, senior associate (Private Client), discussed the key aspects of the Assisted Decision-Making (Capacity) Act and its recent amendment. The webinar was moderated by professional support lawyer, Claire Scannell (Financial Institutions Group).
Overview of the Assisted Decision-Making Capacity Act 2015 and the Assisted Decision-Making (Capacity) (Amendment) Act 2022
We wrote about the Assisted Decision-Making (Capacity) Act 2015 ("the 2015 Act") previously here . This Act was amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022 ("the 2022 Act") and both Acts were fully commenced on 26 April 2023. The legislation replaces the wards of court system with a new, progressive, rights-based system of supported decision-making, including specific key measures related to further compliance with the United Nations Convention on the Rights of Persons with Disabilities. This new legal architecture is underpinned by the Decision Support Service, which oversees and supports decision support arrangements. The Decision Support Service published 13 codes of practice for decision supporters, interveners and relevant professionals, providing guidance for their functions and responsibilities under the amended legislation. One of these codes is for financial service professionals while another larger code on supporting decision-making and assessing capacity is designed to provide general assistance to those interacting with the relevant person.
The legislation operates around a number of core fundamental principles. First, a relevant person is assumed to have the capacity to make their own decisions. This represents a shift away from the previous paternalistic diagnosis–led understanding of capacity, towards a model which is concerned with specific decisions based on time and import.
Further, there is a move away from the best interests test to a test that gives respect to the will and preference of the individual concerned. It is the responsibility of a person who interacts with a relevant person to take all practical steps to assist and help that person when their capacity to make a decision is in question.
Finally, before carrying out a functional test for capacity as provided for in section 3 of the Act, all available support that would make it easier for the relevant person to make a decision should be offered. This is the first time that legislation provides for a formal statutory test in relation to capacity.
A person's capacity to make a decision should only be assessed after all the relevant supports have been provided. There are nine guiding principles set out in section 8 of the Act, as well as the supporting codes. These are aimed at those who interact with relevant persons, typically healthcare professionals, but also financial service providers. Regard must be had as to when the decision must be made, the complexity of the decision and environmental factors.
Key Takeaways for Financial Service Providers
- Make informal assessments against the functional test on an ongoing basis using the codes.
- Have appropriate systems in place to deal with these cases. It is also advisable to create awareness around customer-facing staff in relation to identifying and dealing with capacity issues by supporting the decision-making process.
- Currently there is no guidance or case-law on how the Act will be implemented but it is advisable to document all key stages.