One of the guiding principles of the Act states that:
“a relevant person… shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.”
This guiding principle clarifies that making, being likely to make, or having made a decision which others (such as healthcare workers or family) perceive to be ‘unwise’ is not sufficient grounds to consider the person unable to make that decision.
Often choices which appear unwise can be understood by reference to the person’s circumstances and the goals and beliefs of the person. Everybody has their own values and beliefs and what you, as a healthcare worker, consider to be an unwise decision may reflect differences in values and beliefs between you and the person. Where a person makes, has made, or wishes to make a decision that you consider to be unwise, this:
- is not evidence that the person lacks capacity to make that decision
- is not an adequate reason to challenge their capacity to make that decision, and
- does not automatically trigger an assessment of their capacity.
In protecting and supporting the human rights of all people using health and social care services, a central principle is autonomy – ensuring each person who uses health and social care services has a say over their lives and is facilitated to participate as much as possible in decisions about their own life.
Some practical guidance for healthcare workers:
Person has capacity to make the decision: Seek consent following the HSE National Consent Policy. If the person refuses consent, respect their decision, even if you perceive this decision to be unwise or against medical advice.
If capacity is in question, but the person has an advance healthcare directive refusing the intervention: If the advance healthcare directive is valid and applicable, respect the refusal of the intervention.
If capacity is in question, and the person does not have an advance healthcare directive: In accordance with the guiding principles of the Act, give effect to the will and preferences of the person.