Key Updates in HSE National Consent Policy

K
ey Updates in HSE National Consent Policy
Professor Mary Donnelly
Co-Chair of the HSE National Consent Advisory Group
National Consent Policy 2022: In effect from March 2022
Drafted in light of the Assisted Decision-Making (Capacity) Act 2015 (ADM Act)
Commencement of Assisted Decision-Making (Capacity) Act 2015 and Assisted
Decision-Making (Capacity) (Amendment) Act 2022: 
26 April 2023
Need to update Policy to take account of new legislation
Engagement with key stakeholders including Office of Legal Affairs, Counsel, and State
Claims Agency
Incorporation of relevant aspects of Decision-Support Service Codes of Practice  
Reason for Updates
Introduction amended to include reference to new legislation
Section 1.4 Removed
Section 5.2 now includes Part One 3.3 from v1.1
New subsection 4.2
Part One Section 5 amended to incorporate ADM 
Act
Part One, section 6 expanded to include where a person’s capacity is in question
and principles of ADM
Part 
One, s
ection 7 on A
dvance Directives amended to incorporate ADM Act
Part One Section 8 change of title and update
Appendices – 3 new templates added
, sequence changed, new membership of NCP
Steering group 2023 included
Key Updates
New subsection 4.2
Greater clarity on how to make information more comprehensible
Reflects ADM Act requirement that:
A person is not to be regarded as unable to understand the information relevant to a decision if
he or she is able to understand an explanation of it given to him or her in a way that is
appropriate to his or her circumstances (whether using clear language, visual aids or any other
means).
Information should be tailored to individual’s needs, including Plain English, diagrams, pictures,
videos 
Concentrate on core information 
Break down information – pause to see it is u
nderstood
Avoid medical terminology and jargon
Key Updates 
to Section 5: Capacity to Decide about an Intervention
Incorporation of ADM definition of capacity
Inclusion of Guiding Principles from ADM Act
Enhanced Support requirements
Guidance on when a person’s capacity should/should not be considered to be in question
Guidance on when a capacity assessment should be conducted
Inclusion of new requirements for the assessment of capacity
Inclusion of new duty to support capacity
Some Key 
P
oints 
from 
Section 5
Capacity is decision and time specific
The person should always be supported to make the decision 
before 
capacity 
assessment is considered
In considering whether c
apacity assessment
 is necessary,  consider what difference the assessment will
make
Ask is the intervention proposed is in accordance with the person’s will and preferences and for the
person’s benefit
Capacity assessment has defined steps and
 must be documented
Key Updates 
to 
Section
 
6
: Making Decisions if a Person Lacks Capacity
Incorporation of support requirements and support arrangements from ADM Act
Incorporation of changes to Mental Health Act 2001 by ADM Act
G
uidance on the role of will and preferences and of benefit to the person
Guidance where will and preferences are not ascertainable
Guidance regarding when legal advice should be sought
Some Key 
P
oints 
from 
Section 
6
In some circumstances, an intervention may be provided 
w
here a person lacks capacity and does not
have a decision support arrangement under the ADM Act
 
without the need for court approval.
This is the case where:
(1)
The intervention is in accordance with the person’s will and preferences
(2)
The intervention is in good faith and for the benefit of the person
(3)
Everyone who must be consulted under the ADM Act has agreed that the intervention should
take place.
If the person’s will and preferences cannot be ascertained, the intervention may be provided if you
have consulted with all who must be consulted under the ADM Act and 
also 
those close to the
person and all agree that the intervention should take place.
Key Updates 
to Section 7: Advance Healthcare Plans and Advance Healthcare Directives
 Incorporation of the ADM Act requirements for Advance Healthcare Directives
Statement of the duties of 
Healthcar
e in respect of Advance Healthcare Directives
Guidance on how to assess the validity and the applicability of an Advance Healthcare
Directive
Guidance on the role of a Designated Healthcare Representative
Updates 
to Section 8: Deprivation of Liberty
New Title
Identification of role of application to High Court under inherent jurisdiction
in Deprivation of Liberty cases
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The HSE National Consent Policy is undergoing key updates to align with the Assisted Decision-Making (Capacity) Act 2015 and its amendments. The revisions include incorporating new legislation, enhancing clarity in information delivery, defining capacity to decide about interventions, and outlining support requirements. Stakeholder engagement and the inclusion of new templates and steering group members are among the notable changes.


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  1. Key Updates in HSE National Consent Policy Professor Mary Donnelly Co-Chair of the HSE National Consent Advisory Group

  2. Reason for Updates National Consent Policy 2022: In effect from March 2022 Drafted in light of the Assisted Decision-Making (Capacity) Act 2015 (ADM Act) Commencement of Assisted Decision-Making (Capacity) Act 2015 and Assisted Decision-Making (Capacity) (Amendment) Act 2022: 26 April 2023 Need to update Policy to take account of new legislation Engagement with key stakeholders including Office of Legal Affairs, Counsel, and State Claims Agency Incorporation of relevant aspects of Decision-Support Service Codes of Practice

  3. Key Updates Introduction amended to include reference to new legislation Section 1.4 Removed Section 5.2 now includes Part One 3.3 from v1.1 New subsection 4.2 Part One Section 5 amended to incorporate ADM Act Part One, section 6 expanded to include where a person s capacity is in question and principles of ADM Part One, section 7 on Advance Directives amended to incorporate ADM Act Part One Section 8 change of title and update Appendices 3 new templates added, sequence changed, new membership of NCP Steering group 2023 included

  4. New subsection 4.2 Greater clarity on how to make information more comprehensible Reflects ADM Act requirement that: A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means). Information should be tailored to individual s needs, including Plain English, diagrams, pictures, videos Concentrate on core information Break down information pause to see it is understood Avoid medical terminology and jargon

  5. Key Updates to Section 5: Capacity to Decide about an Intervention Incorporation of ADM definition of capacity Inclusion of Guiding Principles from ADM Act Enhanced Support requirements Guidance on when a person s capacity should/should not be considered to be in question Guidance on when a capacity assessment should be conducted Inclusion of new requirements for the assessment of capacity Inclusion of new duty to support capacity

  6. Some Key Points from Section 5 Capacity is decision and time specific The person should always be supported to make the decision before capacity assessment is considered In considering whether capacity assessment is necessary, consider what difference the assessment will make Ask is the intervention proposed is in accordance with the person s will and preferences and for the person s benefit Capacity assessment has defined steps and must be documented

  7. Key Updates to Section 6: Making Decisions if a Person Lacks Capacity Incorporation of support requirements and support arrangements from ADM Act Incorporation of changes to Mental Health Act 2001 by ADM Act Guidance on the role of will and preferences and of benefit to the person Guidance where will and preferences are not ascertainable Guidance regarding when legal advice should be sought

  8. Some Key Points from Section 6 In some circumstances, an intervention may be provided where a person lacks capacity and does not have a decision support arrangement under the ADM Act without the need for court approval. This is the case where: (1) The intervention is in accordance with the person s will and preferences (2) The intervention is in good faith and for the benefit of the person (3) Everyone who must be consulted under the ADM Act has agreed that the intervention should take place. If the person s will and preferences cannot be ascertained, the intervention may be provided if you have consulted with all who must be consulted under the ADM Act and also those close to the person and all agree that the intervention should take place.

  9. Key Updates to Section 7: Advance Healthcare Plans and Advance Healthcare Directives Incorporation of the ADM Act requirements for Advance Healthcare Directives Statement of the duties of Healthcare in respect of Advance Healthcare Directives Guidance on how to assess the validity and the applicability of an Advance Healthcare Directive Guidance on the role of a Designated Healthcare Representative

  10. Updates to Section 8: Deprivation of Liberty New Title Identification of role of application to High Court under inherent jurisdiction in Deprivation of Liberty cases

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