As we are all living longer and new medical and surgical procedures, drugs and technologies become available, we are making more and more decisions about our own healthcare needs. But do we always have enough information to make these decisions? And are we listened to enough?

“Consent and Capacity in Practice: Clinical and Legal Concerns” might not be the catchiest of seminar titles but the Saturday morning session in University of Limerick Medical School hosted by Sweeney McGann provided a fascinating insight into the Assisted Decision Making (Capacity) Act that was signed into Irish law in 2015.

When the Act comes fully in force, it will put patients at the centre of all decisions about their care and will maximise a person’s capacity to make such decisions.

MatchMedics attended the seminar and these are the highlights from the session

Aine Flynn, Director of Decision Support Service at Mental Health Commission explained her role in implementing and overseeing the new Act and gave a clear insight into some of the changes that will affect healthcare practitioners and others as the new regime of minimal intervention comes into play. Under the Act, people will have the right to be “unwise” and their will and preference will be paramount instead of a practitioner’s view of their “best interests”.

Next Caoimhe Gleeson of the HSE’s Quality Improvement team provided extremely relevant data from work her team has done with healthcare professionals, patients and service users as the organisation prepares for the full commencement of the Act. For example, a recent HSE patient survey indicated that 36% of patients felt they were not fully involved in decisions about their care and 40% of patients felt that they had not been given sufficient information about potential side-effects.

Caoimhe brought into focus the Act underpinning people’s rights to make “unwise” decisions about their care sometimes running contrary to the Hippocratic mantra of “first, do no harm”. In fact, the Irish healthcare system will need to move radically away from a paternalistic 1871 mind set (the year the Act preceding this one was enacted) into a new culture of presumption of capacity.

Dr John Lombard and Dr Eimear Spain from the School of Law at University of Limerick then provided a technical overview of the Act and gave some context around the experience of other countries who have implemented similar legal protections around consent and capacity. The review of the 2005 UK Act found that it had been poorly implemented and cited risk aversion and a paternalistic mind set as reasons for this.

The challenges involved to medical professions was highlighted by another report that found just 20% of General Practitioners surveyed could answer even basic legal capacity questions.

Finally Aoife Hennessey, Partner at sponsors Sweeney McGann presented a practical case study on the dramatic and far-reaching impact that a poor understanding and recognition of the new Act by Healthcare, Legal and Financial practitioners can have, particularly on vulnerable patients. When it comes to medical professionals, the strong advice is to take clear, legible and contemporaneous notes of all interaction when people are making decisions about their care.


Key take-aways for Healthcare professionals for when the Act is fully commenced:

  • ·         There is now a presumption of capacity
  • ·         Right to make “unwise” decisions
  • ·         Your diagnosis does not define you when it comes to capacity
  • ·         Mind set shift required – reject paternalistic, “best interest” approach
  • ·         More subtle communication skills required
  • ·         More information – verbal, written, online – to be made available to patients and service users
  • ·         Next of kin have little, if any, authority
  • ·         Move away from defensive medical practice
  • ·         Work in collaboration with legal, financial and other professionals