What is the Decision Support Service? Have you heard of it and who does it relate to? The answer is that the Decision Support Service is a new Government Agency which provides information to anyone whose capacity may be impaired to enable that person to put in place an agreement to get assistance in making decisions about their everyday life to empower them to make more choices. People who may benefit from the new regime include a person with a disability, a person with an acquired brain injury, a person who has had a stroke, a person with dementia or any condition that affects their ability to understand, process and retain information. It is a relevant issue in relation to care of the elderly and choices to be made about senior living.
In an ideal world people would put in place an Enduring Power of Attorney (relates to legal and financial decisions) and an Advance Healthcare Directive (relates to future healthcare decisions , in particular the right to refuse specified medical treatment) BEFORE it comes to the stage when that person loses his or her mental capacity. But given the nature of the human condition and the preference for ignoring what may happen in the future a large proportion of people say “sure what is the point about worrying about this now “and they put planning for their future care and their future financial and legal affairs on the long finger and when it comes to the crunch it is not clear what their wishes would have been.
The old system of care in relation to mental capacity that has been prevalent in this country since the 1800s is about to change with the full enactment of the Assisted Decision Making Capacity Act in April 2022. What it means in real terms is that healthcare professionals will be under an obligation to help vulnerable people to make decisions insofar as they are able. These decisions may be around things like “What do you want to wear today – the yellow jumper or the blue jumper ?” or “what do you want for dinner – chicken curry or stew?” Other decisions may be things like – who do you want to visit you in the nursing home or who do you not want to visit you?” There may be other more complicated decisions such as choices around senior living: do you want to receive a medical treatment eg. chemotherapy ? The law in this area up until now has been very unclear and this has caused problems for patients, their relatives and carers and doctors too.
When it comes to the time that a person has suffered a stroke or dementia or they have some impairment to their mental capacity the new Act provides for three different possibilities especially around senior care (see also www.decisionsupportservice.ie) … We do not yet know how these agreements will work in practice. At this stage it is all very theoretical but at least the Act provides a legal framework to try and put in place systems to facilitate people with impaired capacity being able to work through, decide and express their choices. One thing I am concerned about is the calibre of the people who agree to enter into agreements to support decision making. It is very important that these people are trustworthy and have the best intentions of the vulnerable person at heart. They must not have a criminal record or be insolvent. They cannot be the owner of a nursing home unless they are a relative of the vulnerable persons. Time will tell how this new system will all pan out. I sincerely hope that the introduction of these roles will not lead to a rise in the incidence of elder abuse in relation to elder living.
- Decision making assistant agreement – this may suit people who might benefit from a little help in making decisions. The agreement needs to be in writing. The vulnerable person will appoint a decision making assistant to help them access information (eg. bank statements) and that person will spend time exploring and explaining the consequences of the decision together. The decision making assistant can also communicate your decision to the authorities or the staff in the nursing home or the relatives or whoever is impacted by the decision.
- Co decision making agreement – this may be relevant to people who need more help in understanding and processing information. Again the agreement needs to be in writing. This category applies where the vulnerable person cannot make decisions on their own. The agreement must be registered with the Decision Support Service.
- Decision making representation order – this service relates to people who are unable to make decisions even with assistance. The Court may appoint a decision making representative. The decision making representative will make decisions on the person’s behalf. The Court will specify what decisions can or cannot be made. To me this sounds very like the old Wards of Court system.
What is the Decision Support Service? I am keeping an open mind on how this new system of assisted decision making will pan out. It is likely that it will only be as good as the people who sign up as decision making assistants and co decision makers and the nature of the relationships between these parties. As for the Court system the same thing applies to those appointed as decision making representatives.
Emer Lavin is director of Emer Lavin Eldercare and has a legal, coaching and advocacy background. For more information re individual consultations and/or corporate training go to www.emerlavineldercare.ie.