Decision-making laws for vulnerable adults 'being ignored' 

'The old ‘best interests’ approach is still very much in evidence,' said Sage Advocacy CEO Mervyn Taylor. Picture: Gareth Chaney/Collins

Decision-making laws for vulnerable adults are being ignored, with their new rights being resisted by some professionals, advocates have warned.

The Assisted Decision-Making (Capacity) (Amendment) Act, which was commenced at the end of April, strengthens the rights of vulnerable adults and older people.

However, Sage Advocacy said that it is finding that “the legislation and its guiding principles are not widely understood”.

The legislation and these rights “in some cases are being resisted by health and social care professionals and legal practitioners”, according to Sage Advocacy.

CEO Mervyn Taylor said the new laws set out that the least restrictive approach should be taken in any situation.

“However, what we have been seeing in the last few months are continuing efforts to apply the old Wards of Court system and go for the most restrictive approach possible,” he said.

He said the legislation allows for the voice of the person to be heard and their preference asked for decisions.

“In spite of this, the old ‘best interests’ approach is still very much in evidence,” he said.

He describes situations where families of older people with cognitive impairment have been told the courts need to make a decision-making representation order and appoint a decision-making representative.

However he said these are situations where people could “with support as provided for in the legislation, make the decision themselves without the need for costly intervention through the courts”. 

Control of finances

Sage Advocacy is also seeing challenges over decisions about place of care and control of finances or assets.

“We are seeing people trying to use the circuit courts to take control of all decision-making responsibility for older people who may be vulnerable, when the legislation is clear that supports and interventions in decision-making should be issue-specific rather than all-encompassing," he said.

He acknowledged it will take time for the new laws to bed in across public services, but called for greater reliance on these changes.

“It is clear that some families are being advised by professionals that the Circuit Court is the starting point for addressing issues about decision-making rather than the end point of a proportionate process of supports including decision-making assistant and co-decision-maker,” he said.

Ongoing process

He called for greater co-ordination between groups such as the HSE, Legal Aid Board, Decision Support Service, and the Courts Service.

“Sage Advocacy has the experience on the ground to ensure that the voices of older people are heard, but we also need mechanisms through which the learning from our work can contribute to an ongoing process of service and systems improvement,” he said.

The group called for specific training for medical and social care professionals on how to assess capacity. Training is also needed for legal professionals, including Legal Aid Board solicitors and judges, it stated.

Among other issues, it called for health watchdog Hiqa and the Decision Support Service to develop a code of practice relating to contracts for care in nursing homes where an older person lacks decision-making capacity.

Sage Advocacy is the national advocacy service for older people and supported almost 5,000 people last year.