Remember me
Vhi webinar sets out framework for healthcare professionals to support patients in making healthcare decisions
The Assisted Decision-Making Capacity (ADC) Act 2015, which came into effect in April 2023, created a new process to replace the old ‘Ward of the State’ system. The Act sets out a framework for healthcare professionals to support individuals to make their own decisions about their finances, health and welfare. The Act also provided for the establishment of the Decision Support Service (DSS) to support people who may require assistance in exercising their decision-making capacity, whether immediately or in the future. The DSS is part of the Mental Health Commission but has a separate role. The service is now fully operational, and currently has over 100 staff, and 5,000 power of attorney arrangement and 180 decision assistance agreements on the books.
At the recent Vhi 360 Hot Topics GP Webinar, Patsy Fitzsimons, Head of the Complaints and Investigations team at the DSS, set out the learnings that have emerged from complaints received by the service to date. She summarised the key features and guiding principles of the ADC Act, and described the main decision-support arrangements and their relevance to healthcare practice.
Ms Fitzsimons said the new Act is ‘a big shift from the old wardship system where the Court made decisions on behalf of a person who couldn’t make decisions for themselves, whereas this Act turns that around and requires healthcare professionals such as GPs to support the individual to make their own decisions insofar as they can’.
The Act sets out a functional approach to the assessment of capacity of adults, which requires that a person’s capacity to be assessed on the basis of their ability to understand the nature and consequences of their decision in the context of available choices, at the time of making the decision.
Ms Fitzsimons said the new Act is ‘a big shift from the old wardship system where the Court made decisions on behalf of a person who couldn’t make decisions for themselves’
Ms Fitzsimons stressed that this is a time-specific and issue-specific assessment to determine the individual’s capacity to make decisions that could relate to their healthcare. It is not an assessment of mental capacity or memory.
She said capacity ‘must be assessed on the basis of that person’s ability to understand at the time that a decision is to be made, and the nature and the consequences of that decision in the context of the available choices. It doesn’t talk about a person as being of unsound mind. It doesn’t have any diagnostic criteria or diagnostic threshold. There’s no reference to mental capacity or incapacity’.
In the context of the Act, an individual lacks capacity if they are unable to understand, retain and weigh-up information just long enough to be able to communicate that decision, even if this requires assistance.
The Act requires that there must be a presumption of capacity. An unwise decision is not conclusive of lack of capacity, even if the healthcare professional believes that the decision is not necessarily for the benefit of the patient. The DSS, in conjunction with the HSE, has developed an online learning module to assist medical practitioners in conducting functional assessments of capacity. This module and other resources, including templates for advanced healthcare directives, are available on the DSS Learning Management System website. (www.decisionsupportservice.ie)
“I would urge you to please look at the template for that capacity assessment,” Ms Fitzsimons told the GP audience. “It is important that you document and retain how you have completed your capacity assessment, as the DSS can receive objections and complaints which would require us to seek a copy of your assessment. This will assist us in forming a view in relation to the objection or complaint.”
There is also a register to check if an arrangement is already in place.
Professor Shaun O’Keeffe, Consultant Geriatrician and co-Chair of the HSE National Consent Advisory Group, was on hand to give some practical examples of how the Act should be applied.
He presented the case of 79-year-old woman with early Alzheimer’s disease who was hospitalised for pneumonia. During the discussion on discharge planning, she clearly understands her options, asks questions, and chooses to return home with community supports. Even if, the next day, the patient does nor recall the conversation or her decisions, she was able to retain the information long enough to make a decision.
Additionally, he presented the case of a 74-year-old woman who is a resident in a nursing home and is declining. She has recently been found wandering and she has fallen twice during the night. On one occasion she sustained a sprained ankle. Staff have requested that the patient’s daughter be given power to ‘detain her for her own safety’. In this situation, the nursing home GP has a number of things to consider. Should the matter be referred to the High Court for consideration? Should the patient be asked to consent to a sedative at night to prevent wandering? Should the daughter be appointed as a decision-making representative under the Act in order to consent to restraints? Prof. O’Keeffe said the most appropriate approach would be to discuss environmental and staffing supports to minimise risk while maintaining autonomy. He stressed that the Act does not provide for issues surrounding restraint, detention, or coercion.
He said one of the ‘trickiest’ parts of the capacity assessment is determining whether the patient can use the information provided as part of the decision-making process, explaining that people use information in accordance with their own beliefs and values.
“They may not give the same value to safety, for example, as healthcare professionals might. And it’s important that you consider their beliefs and values. Sometimes they may have a particularly dominant principle that they’re really desperate to go home, even if that does involve a degree of risk,” he said. Capacity relates to the ‘process of decision-making, not the decision that’s actually made’.
A further challenge highlighted during the discussion was the requirement for periodic court reviews of capacity assessments, often one to three years after an initial ancillary State support application in an acute hospital. By the time the review is requested, the patient may have moved to a nursing home and be under the care of a different GP, who suddenly receives a formal, legalistic letter from the court. The speakers stressed that these reviews must be fresh, four-strand functional assessments, not brief statements that the person is ‘the same as before’, and that using the DSS template makes the task clearer and safer for practitioners.
Patsy Fitzsimons noted that some of the most frequent complaints to the DSS concern the witness of decision-making assistance agreements and failure to record functional capacity assessments. Well-intentioned GPs may, for example, sign a decision-making assistance agreement that was simply left in at reception, without actually witnessing the person sign. In parallel, there remains a persistent misconception that a Mini-Mental State Examination is sufficient to determine capacity.
Under the Act, however, what is required is a functional assessment focused on understanding, retaining, weighing and communicating a decision, with a clear record of how this was tested.
The panel also touched on the practicalities of advance healthcare directives. Doctors can act as witnesses for their own patients, and in urgent situations this may be appropriate and helpful.
However, as Prof. O’Keeffe observed, when a healthcare professional signs as witness there is an implicit endorsement that the person had capacity to make the directive, even if the doctor does not necessarily agree with its content. Within Vhi services, any advance directive that is presented is attached to the electronic record, but uptake in Ireland remains low.
A further challenge highlighted during the discussion was the requirement for periodic court reviews of capacity assessments
Both speakers emphasised the importance of recognising and responding to possible coercion or undue influence around decision-support arrangements. While there is no statutory obligation to report such concerns to the DSS, referral to HSE safeguarding may be appropriate, and clinicians should be cautious about signing off on capacity where they are uneasy. Where possible, the appointer should be seen alone first, with any co-decision-maker involved only after the person’s own wishes have been explored.
From a wider systems perspective, Ann Duffy, Head of QSR, Vhi 360, advocates viewing complaints as a valuable learning tool rather than a threat. Simple communication frameworks such as the ASSIST model – acknowledging the issue, apologising, inviting the person’s story, enquiring and feeding back, working towards a solution and agreeing next steps – can be adapted even in small, busy practices.
Timely responses, openness and compassion were repeatedly identified as key to preventing grievances from escalating.
Finally, the panel reminded attendees that they are not alone in implementing this complex legislation. The DSS provides a freephone queries line (01 211 9750), an email information service (queries@decisionsupportservice.ie), an EPA help desk for those wishing to make their own enduring power-of-attorney, and a range of online training modules. A new printed EPA information pack is also due to be launched to support patients and families who are less comfortable with digital resources.
As the final Vhi GP webinar of 2025 drew to a close, the overarching message was one of cautious optimism. The Assisted Decision-Making (Capacity) Act is demanding, and it requires new habits of documentation, communication and reflection. But with structured tools, supportive resources and a commitment to person-centred, compassionate care, GPs and other clinicians can not only meet their legal obligations, but also enhance the dignity, autonomy and trust of the patients they serve. 
Information
Information and sample forms for recording a capacity assessment and making a capacity statement for the purposes of making and notifying enduring power of attorney are also available on the DSS website.
Vhi 360 Hot Topics is a series of educational webinars focused on key subjects of interest to support the primary care healthcare workforce in delivering improvements to patient care in primary care settings. These are conducted in partnership with MedCafe.ie. Recording of this Vhi 360 Hot Topics Webinar can be found on https://medcafe.ie/vhi_webinars.
Comments (0)