When Will the Assisted Decision-Making Regime Start?

The Government appears to have pushed back the original June start date for this important legislation. However, it could be with us by Autumn. In our 2021 update, we highlighted 3 awaited components before commencement:

1. Amending Legislation
2. New Court rules and processes
3. Full commencement of the Decision Support Service (DSS)

In terms of Step 1, the Assisted Decision Making (Capacity) (Amendment) Bill 2022 was published on 30 May 2022.

So what’s the aim of the legislation?

• Streamlining of existing provisions
• Improvement of safeguards
• Reduction of bureaucracy, and
• Enabling the DSS to operate more effectively

Here are 10 main changes of the legislation:

1. Technical and procedural changes to allow for commencement and end wardship . The legislation will also provide for a functional model of capacity assessment for relevant persons
2. Amended definitions of personal welfare and treatment decisions, to allow for participation by persons with capacity difficulties in health research
3. Clarity for medical professionals on who has authority to make decisions regarding medical treatment where there are capacity difficulties
4. Improved safeguarding provisions
5. Streamlining of processes to allow DSS draw up forms, greater control over DSS’s own admin procedures to the Director. Also provides powers for the DSS Director to investigate and seek informal resolution of issues complaints.
6. Property management role for Director from the original Act has been removed
7. Director will provide for payment of panel member decision-making representatives where there are insufficient assets in the estate of the relevant person
8. New system for enduring powers of attorney (EPAs) where the EPA will be created and registered with the DSS while s/he has capacity. This will enable any problems to be resolved with the person herself / himself. The EPA will come into effect through a notification process by the attorney to the DSS when the relevant person has lost capacity.
9. Strengthened protections for the rights of wards when their wardship is reviewed and they are discharged from wardship and / or migrated to the 2015 Act’s structures
10. Removal of provisions permitting the use of restraint in private settings

What’s not addressed?

Wardship is frequently used to protect vulnerable persons for their own safety by allowing their detention in settings such as nursing homes and hospitals. Concerns have been raised by the Law Society and the Bar Council about the risk to these vulnerable persons if the 2015 Act is commenced. The amending legislation does not appear to address this.

Conclusion

For those who want to follow it more closely the BILL DEBATES - second stage of the Bill was scheduled for the Dáil on Wednesday 1 June 2022 at 14.49 and to resume on Thursday 2 June at 16.09, Debates can be watched live and recordings are also available to watch after the debates. We would recommend that those in the public sector keep abreast of this issue. Once operational, the legislation will completely change the way you interact with vulnerable persons or those with diminished capacity.

For more information, please contact a member of our Health & Prosecutions team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.