2862. Deputy Michael Healy-Rae asked the Minister for Children, Disability and Equality the safeguards that have been put in place to assist vulnerable young adults with complex needs who require a functional capacity assessment under the Assisted Decision-Making (Capacity) Act 2015 (details supplied); and if she will make a statement on the matter. [60455/26]

I thank the Deputy for their question regarding functional assessments of capacity under the Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act).

The 2015 Act, which was commenced in 2023, marked a landmark reform of Ireland’s capacity laws, bringing the state into much closer alignment with the United Nations Convention on the Rights of Persons with Disabilities. It abolished the wards of court framework by repealing the Lunacy Regulation (Ireland) Act 1871 and replaced it with a rights-based model of tiered decision support arrangements. It provides for several tiered decision support arrangements, tailored to the needs of the individual experiencing diminished decision-making capacity.

The guiding principles of the Act state that capacity must be presumed unless the contrary is shown. When interacting with a person whose capacity is in question, or may shortly be in question, all necessary and practicable steps must be taken to support the relevant person in making the decision. There must be a valid reason for assessing a relevant person’s capacity. This may include where doubt remains about the relevant person’s capacity, even after appropriate support has been provided.

Where it is determined that a formal decision support arrangement is required, capacity should be assessed by way of a ‘functional capacity assessment’ which is performed by a medical practitioner or other specified healthcare professional. A functional capacity assessment means that capacity is assessed on an issue and time-specific basis. In that regard a person may lack capacity to make one decision but have capacity to make another decision. A functional capacity assessment is, therefore, not a global assessment of capacity, ensuring that, where there is concern about a person’s ability to make a specific decision, for example in relation to their personal welfare and/or their property and affairs, the adult retains as much autonomy as is possible. It also enables the decision support arrangement to be tailored to the adult’s decision support needs.

The 2015 Act identifies the following professionals as being able to undertake functional assessments of capacity for the purposes of putting a decision-support arrangement in place:

• Registered Medical Practitioners

• Registered Nurses

• Registered Midwives

• Registered Occupational Therapists

• Registered Social Workers

• Registered Speech and Language Therapist

To support these professionals to complete assessments of capacity under the 2015 Act, the HSE has been delivering a training programme on undertaking functional assessments of capacity. Training has been provided across all of the prescribed classes, to ensure consistent national practice across sectors, including the community sector, the acute sector and Section 38 and Section 39 funded organisations.

Over 1,200 healthcare professionals across Ireland have been trained, and many professionals have developed expertise and competence in the area over the last number of years which they have maintained via continuing professional development.

A healthcare professional may refuse to perform an assessment in situations, including where there are no clear grounds for an assessment, that an intervention under the 2015 Act may not be indicated for the person as there may be no reason to question their capacity, or the issue is a private legal matter. If the issue is a private legal matter, there are professionals who undertake assessments through their own private clinics. HSE professionals are not obligated to undertake assessments of capacity save for instances where it directly arises in the course of the care pathway for the person. The HSE does not have any governance over such arrangements and has no role in regulating or monitoring these services.

Where a capacity assessment is required as part of the discharge from wardship process under Part 6 of the Act, a medical visitor is arranged by the Office of Wards of Court to undertake a functional assessment of capacity.

For those seeking an independent capacity assessment, whether they are applying for discharge from wardship or for another decision support arrangement, it may be useful to contact the following for information:

• Irish Association of Social Workers – a list of independent social workers and the type of work that they undertake is available www.iasw.ie/independent_social_workers

• Independent Speech and Language Therapists Ireland – a list of independent speech and language therapists is available https://isti.ie/find-a-speech-therapist/

• Association of Occupational Therapists of Ireland – a list of independent occupational therapists and the services they provide is available www.aoti.ie/ot-directory

In general, where a family member is having difficulty accessing someone who can undertake a functional assessment of capacity for a young adult, the matter should be escalated within their Regional Health Area to the respective head of service (e.g. Disability, Mental Health or Older Persons).