Codes of Practice Glossary

To help you navigate and understand the Codes of Practice we have provided an A to Z glossary of terms used throughout the codes. This glossary is by way of guidance only.

This glossary is provided by way of guidance only and does not constitute a statement of the law or the provisions under the Assisted Decision-Making (Capacity) Act 2015 (as amended) or any ancillary or related legislation.

You can download a full Codes Glossary by clinking on the link.

Abuse is understood as a single, or repeated act, or omission, which violates a person’s human rights or causes harm or distress to a person. Abuse may take a variety of forms.

The Assisted Decision-Making (Capacity) Act 2015 (as amended).

The Powers of Attorney Act 1996.

An advance healthcare directive is an advance expression made by an adult with capacity to express their will and preferences concerning healthcare treatment decisions that may arise if they subsequently lack capacity to make a specific decision.

An advocate is a person nominated by an adult to speak on their behalf and represent their views. Advocacy comes in different forms including informal support and independent advocacy services. Advocacy should always be independent from the service providing care or support.

An agent is a person with authority to undertake legally binding acts on behalf of another person.

Another person in the context of the Act is a person the court deems suitable, willing and able to assist the relevant person during the course of court proceedings under Part 5 of the Act. Another person could be, for example, a trusted family member or friend or an independent advocate.

An attorney is a person appointed by an adult who has capacity (referred to as a donor), in an enduring power of attorney, to make decisions on behalf of the donor when the donor no longer has the capacity to make those decisions for themself.

Autonomy is the right to make decisions and take actions that are in keeping with one’s beliefs and values.

Basic care includes (but is not limited to) warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration.

Bona fide means acting in good faith. In the context of a bona fide interest in the welfare of a relevant person, it means a true or genuine interest.

Capacity refers to decision-making capacity. In this context, capacity means a person’s ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by them in the context of the available choices at the time.

A capacity assessment is an assessment of a person’s ability to understand the nature and consequences of a decision to be made by him or her. Capacity assessments must use a functional approach (see definition: Functional approach to assessing capacity).

When assessing a person’s capacity to make a specific decision, the person assessing capacity must consider whether the relevant person is able to:

  • understand information and facts relevant to the decision;
  • retain that information long enough to make a voluntary choice;
  • use or weigh up that information as part of the process of making the decision; and
  • communicate the decision by any means, including by assistive technology.

A person will be considered to lack capacity if they fail to meet one or more of the above criteria in relation to a specific decision.

A co-decision-maker is a person appointed by a relevant person to jointly make specified decisions with them. A co-decision-maker must be appointed in a written and witnessed co-decision-making agreement, registered with the Decision Support Service.

A cohabitant is one of two adults who live together as a couple in an intimate and committed relationship, and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

Consent is the giving of permission or agreement for an intervention (including in relation to healthcare treatment, property and finances), receipt or use of a service or participation in research. Consent may only be given following a process of communication in which the person has received sufficient information in a manner and form appropriate to their needs to enable them to understand the nature, potential risks and benefits of the proposed intervention or service.

Conscientious objection is the refusal to perform a legal role or responsibility because of personal beliefs.

Reference to the court should be taken as referring to the Circuit Court which has general jurisdiction under the Act, apart from certain matters reserved for the High Court:

  • any decision regarding the donation of an organ from a living donor where the donor is a person who lacks capacity; or
  • where an application in connection with the withdrawal of life-sustaining treatment for a person who lacks capacity comes before the courts for adjudication.

A court assistant is a person the court deems suitable, willing and able to assist a ward of court during the course of court proceedings under Part 6 of the Act, in respect of their discharge from wardship. A court assistant could be, for example, a trusted family member or friend or an independent advocate.

A decision-making assistant is a person appointed through a formal decision-making assistance agreement by a relevant person to support him or her in making a decision, for example, by obtaining information or personal records and by ensuring that the relevant person’s decisions are implemented. The decision-making assistant does not make the decision on behalf of the person or jointly with the person. Decision-making responsibility remains with the relevant person.

A decision-making representation order is a court order appointing a decision-making representative to make one or more decisions for a person who has been declared to lack capacity to make certain decisions and who does not have another decision support arrangement in place.

A decision-making representative is a person appointed by the court in a decisionmaking representation order (court order) where the relevant person lacks capacity to make one or more specific decisions. The scope of a decision-making representative’s authority to make decisions depends on the decisions specified in the court order, which may also include the attachment of conditions and the period of time for which the order is to have effect.

A decision support arrangement is an umbrella term for the five formal decision support arrangements that are available under the Act. Two of these are for the 
purposes of advance planning: 

 

  • advance healthcare directive; and 
  • enduring power of attorney. 

Three are based on the level of support that a person requires to make a specific decision at a specific time: 

  • decision-making assistance agreement; 
  • co-decision-making agreement; and 
  • decision-making representation order. 

A decision supporter is an umbrella term used to describe a person with legal authority specified in a decision support arrangement made under the Act to support a relevant person to make their own decisions or to make the decisions on their behalf. There are five decision supporters under the Act:

  • decision-making assistant
  • co-decision-maker
  • decision-making representative
  • attorney
  • designated healthcare representative

The Decision Support Service is an office based within the Mental Health Commission established by the Act. The Decision Support Service reviews and registers decision support arrangements and supervises decision supporters appointed under such arrangements. (See definition: Director of the Decision Supporter Service).

A designated healthcare representative is a person named by the directive-maker, in their advance healthcare directive, to ensure the advance healthcare directive is complied with and to exercise certain powers as set out in the advance healthcare directive.

A directive-maker is a person who makes an advance healthcare directive.

The role of the Director of the Decision Support Service is to support decision-making by and for adults whose capacity is or may be in question. The statutory functions of the Director, as provided for in Part 9 of the Act, are:

  • to provide information in relation to the various options for exercising capacity under the Act;
  • to provide guidance and information to organisations in the State in relation to their interaction with people who have decision-making capacity difficulties and those who have been appointed to support decision-making;
  • to identify and make recommendations for changes of practices in organisations where the practices may prevent a person with capacity difficulties from exercising their capacity;
  • to review, acknowledge and register decision support arrangements made under the Act;
  • to supervise compliance of decision-making assistants, co-decision-makers, decision-making representatives and attorneys in their functions under the Act;
  • to review and investigate complaints about decision supporters and decision support arrangements;
  • to maintain registers of co-decision-making agreements, decision-making representation orders and enduring powers of attorney created under the Act;
  • to maintain panels of suitable persons to act as decision-making representatives, general visitors and special visitors;
  • to approve, draft and consult on codes of practice under the Act; and
  • to act as the central authority for the purposes of the operation of the Hague Convention on the International Protection of Adults.

Disability means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment (Disability Act 2005)

A donor is a person who creates an enduring power of attorney and who appoints an attorney to make decisions on their behalf when they (the donor) no longer have the capacity to make those decisions.

An enduring power of attorney is an advance planning arrangement in which an adult with capacity (the donor) gives authority to another person or persons (the attorney(s)) to act on their behalf in respect of certain personal welfare or property and affairs decisions if they lose capacity to make one or more of those decisions in the future. The donor can give their attorney a general authority to act on their behalf, or a specific authority to act on their behalf in respect of specific decisions only.

An enduring power of attorney created under the Powers of Attorney Act 1996 continues to be governed by the rules and regulations provided for in the 1996 Act and remains valid. No further enduring powers of attorney can be created under the provisions of the 1996 Act. The Decision Support Service can investigate complaints made against attorneys under the 1996 Act.

Ex parte refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

Financial professionals and financial service providers encompass all persons who provide one or more financial products or services, whether regulated or unregulated including those operating in the State and those outside the State who provide a financial service to consumers in the State.

A functional approach to assessing capacity means that the emphasis is on the person’s capacity to make a specific decision, at the time the decision has to be made (issue-specific and time-specific):

  • Issue-specific: Capacity is assessed only in relation to the decision in question. A judgement that someone lacks capacity in relation to one matter does not have a bearing on whether capacity is present in relation to another matter;
  • Time-specific: Capacity is assessed only at the time in question. A judgement that someone lacks capacity at one time does not have a bearing on whether capacity in relation to that matter is present at another time. The functional approach to assessing capacity focuses on how a person makes a decision and not the nature or wisdom of that decision.

A general practitioner is a medical doctor based in the community who provides initial, on-going and continuous personal medical care, with responsibility for integrating care, treating people with acute, minor or chronic illnesses, and referring those with serious conditions to a hospital when specialist treatment is likely to be necessary and be of benefit.

A general visitor is a person appointed by the Decision Support Service to assist the Director in performing certain functions under the Act. A general visitor may be directed by the Decision Support Service to visit a relevant person, decision supporter and any other person who may be able to assist with information, and to submit a report to the Decision Support Service following such visits.

Harm means harm to body or mind and includes pain and unconsciousness.

Healthcare professionals refer to the various health and social care workers who support people while they are receiving healthcare treatment. The term covers all health and social care professions whether or not the profession is a designated profession within section 3 of the Health and Social Care Professional Act 2005.

Healthcare treatment means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person and includes life-sustaining treatment.

Immediate family member means:

  • a spouse, civil partner, or cohabitant;
  • a child, son-in-law or daughter-in-law;
  • a parent, step-parent, mother-in-law or father-in-law;
  • a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law;
  • a grandparent or grandchild;
  • an aunt or uncle; or
  • a nephew or niece.

An independent advocate is a person who works with and for a relevant person, around a specific issue or issues which have arisen, where they have difficulty voicing their will and preferences. Their role is to support the person to express their will and preferences, to represent the person or to support the person to represent themselves. An independent advocate is employed or engaged by an advocacy organisation, is free from conflict of interest and is independent of family and service providers.

An instrument is a document in which the decision support arrangement (such as an enduring power of attorney) is created.

The Act provides for legally recognised persons, referred to as interveners, who must follow the guiding principles as they undertake functions under the Act. As defined in the Act, interveners can be:

  • the Circuit Court or High Court;
  • a decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative;
  • the Director of the Decision Support Service;
  • a special visitor or a general visitor;
  • court friend or another person (as described in the Act);
  • a committee of the ward; and
  • a healthcare professional.

An intervention is any action taken, direction given, or any order made by an intervener in respect of a relevant person under the Act.

When used in reference to decisions made by decision supporters, jointly means that all the appointed decision supporters must make all relevant decisions in the decision support arrangement together and where appropriate each person must sign any relevant documents. A decision made by one person alone will not be valid. A document signed by one person only will not be valid.

When used in reference to decision supporters, jointly and severally means that any one of the appointed decision supporters may make a relevant decision either together or on their own, or where appropriate sign a relevant document. Signatures from other decision supporters are not required to make the document valid.

A legal practitioner is a practicing barrister or a practicing solicitor

Life-sustaining treatment is any clinically appropriate medical treatment, technology, procedure or medication that is administered to forestall the moment of death. These treatments may include, but are not limited to, mechanical ventilation, artificial hydration and nutrition, cardiopulmonary resuscitation (CPR), haemodialysis, chemotherapy, or certain medications including antibiotics although antibiotics are not routinely considered to be life-sustaining treatment.

Palliative care aims to improve the quality of life of a person and their family facing the problems associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and assessment and treatment of pain and other problems, physical, psychosocial and spiritual. The aim of palliative care is to enhance quality of life and, wherever possible, to positively influence the course of illness. Palliative care also extends support to families to help them cope with their family member’s illness and their own experience of grief and loss.

Personal welfare decisions include matters relating to:

  • accommodation including whether or not the relevant person should live in a designated centre;
  • participation in employment, education or training;
  • participation in social activities;
  • decisions related to any social services provided or to be provided;
  • healthcare;
  • participation in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices; or
  • other matters relating to the relevant person’s well-being.

Presumption of capacity means that it must be presumed that a person has capacity in respect of a specific decision unless otherwise shown. The onus of proving that a person lacks capacity to make a decision is on the person who is questioning a relevant person’s ability to make a particular decision.

Property and affairs decisions include matters relating to:

  • managing property, including day-to-day management of finances and purchasing good and services;
  • selling, mortgaging or disposing of property;
  • buying or acquiring property;
  • business decisions;
  • ending a partnership;
  • carrying out a contract;
  • managing debts and taxes;
  • exercising the powers of a tenant for life;
  • providing for the needs of other people;
  • court or tribunal proceedings in the name of the person or on their behalf; or
  • applying for social services.

A registered medical practitioner is a person who holds a basic medical qualification, and who is registered under section 46, 47, 48, 49 or 50 of the Medical Practitioners Act 2007.

A relevant decision is a decision made, or to be made, that is the subject of a decision-making assistance agreement, co-decision-making agreement, a decision-making order, decision-making representation order, enduring power of attorney or advance healthcare directive.

Relevant information means the relevant person’s personal records, or other information related to the relevant person or that they are entitled to. Relevant information also includes information required as part of the decision-making process or to conduct a capacity assessment.

A relevant person is a person:

  • whose capacity is in question or may shortly be in question in respect of one or more matters (i.e., a person who may have difficulty reaching a decision without the support of someone), or
  • who lacks capacity in respect of one or more matters (i.e., a person who may be able to make some decisions but not others), or
  • whose capacity is in question or may shortly be in question in respect of one or more matters and who lacks capacity at the same time but in respect of different matters (this is a combination of the above).

Revocation means the formal cancellation of a decision support arrangement, following the procedures set out in the Act.

Safeguarding refers to measures to protect the health, well-being and human rights of individuals, which allow people to live free from abuse, harm and neglect.

A special visitor is a person appointed by the Decision Support Service to assist the Director in carrying out their functions. A special visitor may be directed by the Director to visit a relevant person, decision supporters and any other person who may be able to provide relevant information and carry out assessments of capacity in relation to a relevant decision.

A suitable person refers to the eligibility of a person to become a decision supporter through meeting the specific criteria set out in the Act.

Supporting decision-making refers to any process in which a person is supported, through whatever means necessary, in making a particular decision. The purpose of supporting decision-making is to maximise a person’s capacity in order to help uphold their rights and safeguard their autonomy. Supported decision-making may include:

  • • understanding the decision support needs of the person;
  • • ensuring access to relevant and appropriate information;
  • • considering environmental factors; and
  • • providing ongoing support where appropriate.

In the context of the Act, a temporary prohibition order is an order made by the court which suspends a decision supporter from acting while an investigation is ongoing.

A trust corporation is a category of companies empowered to undertake trust business, provided certain other conditions are met which are contained in section 30 of the Succession Act 1965. A trust corporation is deemed a person for the purposes of an enduring power of attorney in the Act but may only be given authority in relation to property and affairs decisions.

An unwise decision is a decision which may be perceived as being ill-advised or imprudent. This may reflect a difference in values, goals and preferences between the relevant person and the person interacting with them.

Variation means the formal amendment of a decision support arrangement, following the procedures set out in the Act.

Voluntariness is a choice that is made of a person’s free will, as opposed to being made as the result of coercion or duress.

Wardship was the process whereby an application was made to the court to hold a formal inquiry into the question of a person’s decision-making capacity. If, following such an inquiry, a person was declared by the court to be of unsound mind and incapable of managing their personal affairs and property then they were described as a ward of court and the court assumed overall control of the person’s affairs and appointed a committee to make decisions on the person’s behalf in their best interests.

A person’s will incorporates their values, personal beliefs and ultimate goals. A person’s preferences refer to a greater liking for one alternative over another.

A witness is a person who signs one of the following legal instruments: an advance healthcare directive; a co-decision-making agreement; a decision-making assistance agreement; or an enduring power of attorney, in accordance with the requirements of the Act, so as to attest that the instrument was voluntarily signed by the person making it.

Alternatively, a witness can refer to a person whom the Decision Support Service has called to provide information as part of an investigation.