Assisted Decision-Making (Capacity) Act 2015

(6) Where the Director publishes a code of practice under subsection (3), he or she shall cause a notice to that effect to be published in Iris Oifigiúil and such notice shall specify—

(a) the persons or classes of persons for whom the code is providing guidance,

(b) the date from which the code has effect, and

(c) the place where a copy of the code may be viewed, inspected or purchased.

(7) The Director shall publish, on the website on the internet or by the other electronic means referred to in section 95(1)(j), a copy of each code of practice published under subsection (3), as each such code is in force from time to time, on and from the date on which each such code has effect.

(8) The Director shall arrange for that part of the website on the internet or other electronic means referred to in section 95(1)(j), which contains a code of practice pursuant to subsection (7) to ordinarily be accessible by members of the public.

(9) Subject to subsection (10), the Director may, after consultation with the working group, amend or revoke a code of practice published under subsection (3).

(10) Subsections (4) and (5) shall, with all necessary modifications, apply to a code of practice that the Director proposes to amend or revoke under subsection (9) as subsections (4) and (5) apply to a code of practice that the Director proposes to publish under subsection (3).

(11) Where the Director amends or revokes a code of practice published under subsection (3), the Director shall cause a notice to that effect to be published in Iris Oifigiúil specifying—

(a) the code to which the amendment or revocation, as the case may be, relates and, if applicable, particulars of the amendment,

(b) the persons or classes of persons in respect of whom the code is so amended or revoked, as the case may be, and

(c) the date from which the amendment or revocation, as the case may be, shall have effect.

(12) A document bearing the seal of the Mental Health Commission and purporting to be a code of practice published under subsection (3) or, where such a code has been amended under this section, the code as so amended, shall be admissible in any legal proceedings.

(13) A person concerned shall have regard to a code of practice published under subsection (3) when performing any function under this Act in respect of which the code provides guidance.

(14) Where it appears to a court, tribunal, or body concerned, conducting any proceedings that—

(a) a provision of a code of practice published under subsection (3), or

(b) a failure to comply with a code of practice published under subsection (3),

is relevant to a question arising in the proceedings, the provision or failure, as the case may be, shall be taken into account in deciding the question.

92. Persons who may make applications to relevant court under this Part, etc.

92. (1) An application to the relevant court under this Part (other than an application by the directive-maker concerned) shall be made on notice to—

(a) the directive-maker,

(b) the persons referred to in paragraphs (c) to (i) of subsection (3) (other than any such person who is the applicant), and

(c) such other persons as may be specified in rules of court.

(2) Subject to subsection (3), an application to the relevant court under this Part shall not be made unless the person making the application has received the consent of the court to the making of the application, which consent may be sought by way of an ex parte application.

(3)Subsection (2) shall not apply to an application to the relevant court under this Part made by—

(a) the directive-maker,

(b) the Director,

(c) a spouse or civil partner of the directive-maker,

(d) the cohabitant of the directive-maker,

(e) a decision-making assistant for the directive-maker,

(f) a co-decision-maker for the directive-maker,

(g) a decision-making representative for the directive-maker,

F130[(h) an attorney or an attorney under the Act of 1996 for the directive-maker,]

(i) a designated healthcare representative for the directive-maker, or

(j) a person specified for that purpose in an existing order of the court under this Part where the application relates to that order.

(4) An application to the relevant court under this Part (including an ex parte application under subsection (2)) shall state—

(a) the applicant’s connection with the directive-maker,

(b) the benefit to the directive-maker sought to be achieved by the application, and

(c) the reasons why the application is being made, in particular—

(i) the reason why the benefit to the directive-maker sought to be achieved has failed to be achieved in any other appropriate and practicable manner taken prior to the making of the application, and

(ii) the reason why, in the opinion of the applicant, no other appropriate and practicable manner to achieve that benefit remains to be taken prior to the making of the application.

(5) In every application to the relevant court under this Part, the applicant shall inform the court of the existence of—

(a) any decision-making assistance agreement, co-decision-making agreement, power of attorney (whether an enduring power or otherwise and whether or not the power is registered) or advance healthcare directive created by the directive-maker, and

(b) any decision-making order or decision-making representation order in respect of the directive-maker,

which, to the applicant’s knowledge, still has any force or effect.

(6) Rules of court shall make provision—

(a) as to the manner and form in which proceedings under this Part are to be commenced,

(b) as to the persons entitled to be notified of, and be made parties to, such proceedings, and

(c) as to what may be received as evidence in such proceedings and the manner in which it is to be presented.

(7) Hearings of applications under this Part shall—

(a) be conducted with the least amount of formality consistent with the proper administration of justice, and

(b) be heard and determined otherwise than in public.

(8) In this section “relevant court” means the court or the High Court, as appropriate.

93. Review of this Part

93.F131[…]

PART 9 Director of the Decision Support Service

Chapter 1

94. Appointment of Director

94. (1) The Mental Health Commission shall appoint a person to be known as the Director of the Decision Support Service to perform the functions conferred on the Director by this Act.

(2) The Director shall—

(a) be appointed by the Mental Health Commission on the recommendation of the Public Appointments Service after a competition for that purpose under section 47 of the Public Service Management (Recruitment and Appointments) Act 2004 has been held, and

(b) have the appropriate experience, qualifications, training and expertise to enable him or her to efficiently and effectively perform the functions conferred on him or her.

(3) A person is not eligible for appointment as the Director if he or she—

(a) is a member of either House of the Oireachtas,

(b) is entitled under the rules of procedure of the European Parliament to sit in that Parliament, or

(c) is a member of a local authority within the meaning of the Local Government Act 2001.

95. Functions of Director

95. (1) The Director shall have, in addition to the functions assigned to him or her by any other provision of this Act, the following functions:

(a) to promote public awareness of this Act and matters (including the United Nations Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006) relating to the exercise of their capacity by persons who require or may shortly require assistance in exercising their capacity;

(b) to promote public confidence in the process of dealing with matters which affect persons who require or may shortly require assistance in exercising their capacity;

(c) to provide information to relevant persons in relation to their options under this Act for exercising their capacity;

(d) to provide information to decision-making assistants, co-decision-makers, decision-making representatives, designated healthcare representatives and attorneys in relation to the performance of their functions under this Act;

(e) to supervise, in accordance with the provisions of this Act, compliance by decision-making assistants, co-decision-makers, decision-making representatives and attorneys in the performance of their functions under this Act;

(f) to provide information in relation to the management of property and financial affairs to relevant persons and to decision-making assistants, co-decision-makers, decision-making representatives and attorneys;

(g) to provide information and guidance to organisations and bodies in the State in relation to their interaction with relevant persons;

(h) to provide information and guidance to organisations and bodies in the State in relation to their interaction with decision-making assistants, co-decision-makers, decision-making representatives, attorneys and designated healthcare representatives;

(i) to identify and make recommendations for change of practices in organisations and bodies in which the practices may prevent a relevant person from exercising his or her capacity under this Act;

(j) to establish a website on the internet or provide, or arrange for the provision of, other electronic means by which to disseminate information to members of the public relevant to the performance of the Director’s functions and which will, in the opinion of the Director, assist members of the public to understand the operation of this Act and the Director’s role in relation thereto;

F132[(ja) to make recommendations to the Minister for Health on any matter relating to the operation ofPart 8;]

(k) to make recommendations to the Minister on any matter relating to the operation of this Act.

(2) The Director shall have all such powers as are necessary or expedient for, or incidental to, the performance of his or her functions.

(3) F133[Save where the Minister is empowered under this Act to prescribe fees by regulations, the Director], with the consent of the Minister, may, and if directed by the Minister to do so and in accordance with the terms of the direction, shall F133[specify] the fees to be paid to him or her and when they fall due in respect of—

(a) the performance of functions,

(b) the provision of services, and

(c) the provision of information and guidance,

by him or her under the Act.

(4) Without prejudice to the generality of subsection (3), the Director’s power under that subsection to F133[specify] fees includes the power to provide for exemptions from the payment of fees, in different circumstances or classes of circumstances or in different cases or classes of cases.

F133[(5) In carrying out his or her functions, the Director may—

(a) consult with any person who has any functions in relation to the care or treatment of a relevant person, and

(b) request information relating to the carrying out of functions under this Act from decision-making assistants, co-decision-makers, decision-making representatives, attorneys, designated healthcare representatives or relevant persons.]

95A. F134[Regulations providing for disclosure of certain data by Director

95A.(1) The Minister, following consultation with such other Minister of the Government as he or she considers appropriate and with the Data Protection Commission, may make regulations to provide for the disclosure by the Director of information lawfully obtained by him or her, which may include personal data in relation to a relevant person or another person, to a public authority or a public body specified undersubsection (2)(b), and in particular may make regulations relating to where—

(a) such disclosure is necessary to protect the vital interests of the relevant person or another person,

(b) such disclosure is necessary to protect and safeguard the interests of a relevant person or another person in relation to his or her treatment or care,

(c) such disclosure is necessary to protect and safeguard the assets of a relevant person, or

(d) the Director comes into possession of information that discloses the commission or possible commission of a criminal offence.

(2) Regulations made undersubsection (1)shall specify—

(a) the type of information that the Director may disclose,

(b) the public authorities or public bodies to which the Director may disclose the information,

(c) the purpose or purposes of the disclosure of the information, and

(d) the conditions in accordance with which the information is to be disclosed.

(3) Without prejudice to the generality ofsubsection (1), regulations made thereunder may provide for the sharing of special categories of personal data or data relating to the prevention, detection, investigation or prosecution of criminal offences in relation to a relevant person where this is necessary for reasons of substantial public interest, in which case the regulations shall identify—

(a) the substantial public interest concerned, and

(b) the suitable and specific measures to be taken to safeguard the fundamental rights and freedoms of data subjects in processing the personal data which is authorised by the regulations.

(4) For the purposes ofsubsection (3)(b), subsections (2) to (8) of section 36 of the Data Protection Act 2018 shall apply in like manner to regulations to whichsubsection (3)of this section refers as they apply to regulations made under the said section 36.

(5) The Minister, when making regulations undersubsection (1), shall have regard to the need for the protection of individuals with regard to the processing of their personal data, and without prejudice to the generality of that need, have regard to—

(a) the nature, scope and purposes of the processing,

(b) the nature of the substantial public interest concerned,

(c) any benefits likely to arise for the data subjects concerned,

(d) any risks arising for the rights and freedoms of such subjects, and

(e) the likelihood of any such risks arising and the severity of such risks.

(6) Regulations made undersubsection (1)shall—

(a) respect the essence of the right to data protection, and

(b) enable processing of such data only in so far as is necessary and proportionate to the aim sought to be achieved.

(7) Regulations made undersubsection (1)may, in specifying the conditions in accordance with which the information referred to insubsection (2)is to be disclosed underparagraph (d)of the saidsubsection (2), provide for information to be disclosed under and in accordance with a data sharing agreement within the meaning of section 2 of the Data Sharing and Governance Act 2019.

(8) In this section—

"Act of 2018" means the Data Protection Act 2018;

"information" includes data;

"personal data" has the same meaning as it has in section 69(1) of the Act of 2018;

"public authority" has the same meaning as it has in section 2(1) of the Act of 2018;

"public body" has the same meaning as it has in section 2(1) of the Act of 2018;

"special categories of personal data" has the same meaning as it has in section 2(1) of the Act of 2018.]

79B. F135[Documents in electronic form

95B.(1) The Director may specify—

(a) that a relevant document, or class of relevant documents, may—

(i) be in electronic form,

(ii) be in a format that he or she may specify, and

(iii) be sent to him or her, or submitted to him or her, in electronic form,

and

(b) the circumstances in which a specification underparagraph (a)shall or shall not apply.

(2) The Director may certify a copy of—

(a) a relevant document transmitted or received by the Director in electronic form in accordance with this section, or

(b) a relevant document kept by the Director in electronic form where the relevant document was transmitted or received by the Director otherwise than in an electronic form and an electronic copy was made of the document,

to be a true copy of that document.

(3) In this section—

"electronic form" means information that is generated, communicated, processed, sent, received, recorded, stored or displayed by electronic means and is capable of being used to make a legible copy or reproduction of that communicated information but does not include information communicated in the form of speech and such electronic means includes electrical, digital, magnetic, optical electro-magnetic, biometric, photonic and any other form of related technology;

"relevant document" means—

(a) an application, notice, notification, objection or complaint under any provision of this Act,

(b) any document required to be provided by or to the Director in connection with an application, notice, notification, objection or complaint referred to inparagraph (a),

(c) a report by or to the Director under this Act, or

(d) any other document provided by or to the Director under this Act.]

96. Investigations by Director

96. F136[(1) This section shall apply to an investigation carried out by the Director undersection 15, 30, 47, 76or88(4)and a reference in this section to an investigation is a reference to an investigation to which this section applies.]

(2) F136[The Director may, when conducting an investigation] —

(a) summon witnesses to attend before him or her,

(b) examine on oath the witnesses attending before him or her,

(c) require any such witness to produce to him or her any document in the power or control of the witness,

(d) by notice in writing, require any person to provide him or her with such written information as the Director considers necessary to enable him or her to carry out his or her functions.

(3) The Director may investigate a complaint even though the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of.

(4) The Director may seek resolution of F136[complaints, or of investigations on his or her own initiative,] in such manner (including by any informal means) as the Director considers appropriate and reasonable.

(5) The Director shall draw up procedures in relation to the making and investigation of F136[complaints, or to investigations on his or her own initiative,] as he or she considers appropriate and shall cause the procedures to be published.

(6) An investigation by the Director under this Act shall be conducted otherwise than in public.

(7) A person who—

(a) fails to comply with a requirement under this section,

F136[(b) hinders or obstructs—

(i) the Director in the carrying out of an investigation, or

(ii) one or more of the Director’s staff to whom the Director has delegated one or more functions undersection 98(2)with regard to the carrying out of an investigation,]

shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

F137[(8) The Director may, if he or she thinks fit, pay to a witness summoned to attend before the Director undersubsection (2)—

(a) sums in respect of travelling and subsistence expenses properly incurred by the witness, or

(b) allowances by way of compensation for loss of his or her time,

that shall be calculated in accordance with such guidance and be paid subject to such conditions as may be determined by the Minister with the consent of the Minister for Public Expenditure and Reform.

(9) In this section, "investigation" includes a review referred to insections 15(1A),30(1A),47(1A),76(2A)and88(4)(b)(i).]

96A. F138[Temporary prohibition order

96A.(1) Where the Director considers, while he or she is conducting an investigation undersection 15, 30, 47or76, as the case may be, that an immediate prohibition of a decision-making assistant, co-decision‑maker, decision-making representative or attorney for a relevant person from acting as such is necessary because of an immediate risk of harm to the relevant person or the property of the relevant person, he or she may make an application to the court for a temporary prohibition order undersubsection (3)pending the resolution, by the Director or the court, as the case may be, of his or her investigation.

(2) Where an application undersubsection (1)for an order is made ex parte, it shall be grounded on an affidavit sworn by the Director or by a person to whom that function is delegated undersection 98(2).

(3) The court may, on an application undersubsection (1), make an order (in this section referred to as a "temporary prohibition order") prohibiting the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned from acting as such for the relevant person concerned for a period of time, or until the occurrence of an event, specified in the order where, having regard to the circumstances of the case, the court considers it necessary to do so for the protection of the relevant person or the property of the relevant person.

(4) An order under this section—

(a) may be madeex partewhere, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice, and

(b) where it is madeex parteshall be for such period, not exceeding 14 working days, as is specified in the order unless on application by the Director and on notice to the relevant person concerned and the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned, as the case may be, the temporary prohibition order is confirmed within that period by order of the court.

(5) Where a temporary prohibition order is made, the Director shall, as soon as is practicable, serve a copy of the order and of the affidavit referred to insubsection (2)on the relevant person concerned, the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned and on any other persons identified by the Director and approved by the court.

(6) A temporary prohibition order—

(a) shall take effect from the date of the service of a copy of the order referred to insubsection (5)on the decision-making assistant, co-decision-maker, decision-making representative or attorney concerned,

(b) subject tosubsection (4), shall have effect for the period specified in the order, or on the occurrence of an event to whichsection 15, 30, 47or76, as the case may be, refers, and specified by the court in the order, and

(c) subject tosubsection (4), may contain such further directions or conditions as the court considers appropriate, including regarding the variation, renewal or discharge of the order.

(7) During the period that a temporary prohibition order is in effect—

(a) where the order is in relation to a decision-making assistant, the relevant person may appoint another decision-making assistant for that period or otherwise,

(b) where the order is in relation to a co-decision-maker, the relevant person may appoint another co-decision-maker for that period or otherwise,

(c) where the order is in relation to a decision-making representative, any relevant decisions that are required to be made during that period may be made by order of the court or, notwithstandingsection 38(1), by a decision-making representative appointed by the court by order undersection 38(2)(b)on behalf of the relevant person, or

(d) where the order is in relation to an attorney and there is no other attorney appointed by the donor under the enduring power of attorney who may make any relevant decisions that are required to be made during that period, any such relevant decisions may be made by order of the court or, notwithstandingsection 38(1), by a decision-making representative appointed by the court by order undersection 38(2)(b)on behalf of the relevant person.

(8) An application undersubsection (1)shall be heard otherwise than in public unless the court considers it appropriate to hear the application in public.

(9) A notice document that is required to be served on a person under this section shall be addressed to the person concerned by name and shall be served on the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to inparagraph (b); or

(d) by electronic means, in a case in which the person has given notice in writing to the person serving the document concerned of his or her consent to the document (or documents of a class to which the document belongs) being served on him or her in that manner.

(10) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.]

96B. F139[Power of Director to specify form of signature

96B.The Director may specify the form of signature (including a signature in electronic format) of any person, including signatories and witnesses, to an agreement, instrument, directive or other document under this Act, including a decision-making assistance agreement, a co-decision-making agreement, an instrument creating an enduring power of attorney, an advance healthcare directive or any document specified by the Director, or prescribed by the Minister by regulations, under this Act.]

97. Terms and conditions of Director

97. (1) Subject to subsection (2), the Director shall hold office for a term of 6 years and may be re-appointed for a second or subsequent term.

(2) The Director shall hold office on such terms and conditions as may be determined by the Mental Health Commission, with the consent of the Minister F140[…] given after consultation with the Minister for Public Expenditure and Reform, at the time of appointment or re-appointment.

(3) A person appointed to be Director shall be a member of the staff of the Mental Health Commission.

Chapter 2

98. Staff of Director of the Decision Support Service

98. (1) A person who is a member of the staff of the Director shall be a member of the staff of the Mental Health Commission and the provisions of Part 3 of the Act of 2001 shall apply to such staff.

(2) The Director may delegate any of his or her functions to a specified member of the staff of the Mental Health Commission assigned for the time being to the Director (other than the power to delegate under this subsection and the functions specified in section 103), and, accordingly, references in this Act to the Director shall be construed, where appropriate having regard to any delegation made under this subsection, as including, as respects the matters so delegated, references to any person to whom such functions stand delegated.

(3) The Director may revoke a delegation made pursuant to subsection (2).

(4) The Mental Health Commission shall appoint such number of persons to be members of the staff of the Director as may be approved by the F141[Minister after consultation with the Minister for Health and] with the consent of the Minister for Public Expenditure and Reform.

(5) The numbers and grades of staff to be appointed under this section and the conditions (including those relating to remuneration and allowances) of their appointment shall be determined by the Mental Health Commission with the approval of the F141[Minister after consultation with the Minister for Health and] given with the consent of the Minister for Public Expenditure and Reform.

(6) The F141[Director] may, from time to time, engage such specialist advisers as F141[he or she] may consider necessary to assist him or her in the discharge of his or her functions under this Act.

(7) Any fees due to an adviser engaged under subsection (6) shall be subject to the prior agreement of the F141[Minister], given with the consent of the Minister for Public Expenditure and Reform, and shall form part of the expenses of the F141[Decision Support Service].

Chapter 3

99. Special visitors and general visitors

99. (1) The Director may, in accordance with this section, appoint a person to be a special visitor or general visitor.

F142[(2) A special visitor shall be—

(a) a registered medical practitioner who has particular knowledge, expertise and experience as respects the capacity of persons, or

(b) a person who, although not a registered medical practitioner, is, in the opinion of the Director, a person who has particular knowledge, expertise and experience as respects the capacity of persons,

who may assist the Director in performing his or her supervisory function referred to insection 95(1)(e), in performing his or her functions undersection 96, or in undertaking assessments of capacity where the Director brings an application underPart 5in relation to a declaration of capacity.]

(3) A general visitor is a person who, in the opinion of the Director, is a person who possesses relevant qualifications, or has other relevant expertise or experience, to assist the Director in performing his or her supervisory function referred to in F142[section 95(1)(e)and in performing his or her functions undersection 96].

(4) An appointment of a person as a special visitor or general visitor shall be made subject to such terms and conditions (including those relating to remuneration and allowances) as the F142[Minister], with the consent of the Minister for Public Expenditure and Reform, may determine.

(5) The Director may direct a special visitor or general visitor to visit—

(a) a decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney for a relevant F142[person,]

(b) a relevant person for whom there is a decision-making assistant, co-decision-maker, decision-making representative, designated healthcare representative or attorney, or in respect of whom an order has been made under F142[section 48, or],

F143[(c) any other person specified in the direction (who may include a family member or a provider of a service) who the Director considers is necessary to visit to obtain further information about the relevant person,]

and, subsequent to the visit, to submit to the Director a report on such matters concerning the person visited as the Director may specify in the direction.

(6) Subject to subsections (7) and (8), for the purposes of enabling the Director to perform his or her functions, he or she may direct a special visitor or general visitor to—

(a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in relation to a relevant person by any person, body or organisation, and

(b) interview a relevant person in private or otherwise than in public.

(7)Subsection (6) shall not entitle the Director to direct a general visitor to examine and take copies of any health record of a relevant person unless the general visitor is a registered medical practitioner.

(8) Prior to taking an action pursuant to paragraph (a) of subsection (6), the special visitor or general visitor, as the case may be, shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where—

(a) there has been a declaration under section 37(1)(b) in respect of the person, or

(b) an enduring power of attorney has been registered in respect of the person.

(9) A special visitor or general visitor shall not—

(a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (6), or

(b) use such information for a purpose that is not in accordance with this section.

(10) A special visitor or general visitor shall take reasonable steps to ensure that any information obtained pursuant to this section is—

(a) kept secure from unauthorised access, use or disclosure, and

(b) safely disposed of when he or she believes it is no longer required.

(11) The Director shall, on an annual basis, carry out checks to ascertain if special visitors and general visitors are complying with subsections (9) and (10).

100. Court friends

100. (1) The Director may or, where section 36(9) applies, shall, in accordance with this section, appoint a person to be a court friend for a relevant person.

(2) (a) A court friend for a relevant person is a person who assists the relevant person in relation to an application under Part 5 in respect of which the relevant person is the subject.

(b) The court, on the hearing of such application, may hear submissions from the court friend on behalf of the relevant person.

(3) Subject to subsections (4) and (5), for the purposes of assisting a relevant person in relation to an application under Part 5, a court friend may—

(a) at any reasonable time, examine and take copies of any health, personal welfare or financial record held in respect of the relevant person by any person, body or organisation, and

(b) interview the relevant person in private or otherwise than in public.

(4)Subsection (3) shall not entitle a court friend to examine and take copies of any health record of a relevant person unless the court friend is a registered medical practitioner.

(5) Prior to taking an action pursuant to paragraph (a) of subsection (3), the court friend shall seek the consent of the relevant person to the taking of such action, unless the Director dispenses with this requirement where—

(a) there has been a declaration under section 37(1)(b) in respect of the person, or

(b) an enduring power of attorney has been registered in respect of the person.

(6) A court friend shall not—

(a) attempt to obtain information that is not reasonably required for the purposes referred to in subsection (3), or

(b) use such information for a purpose other than provided for in that subsection.

(7) A court friend shall take reasonable steps to ensure that any information obtained pursuant to this section is—

(a) kept secure from unauthorised access, use or disclosure, and

(b) safely disposed of when he or she believes it is no longer required.

(8) The Director shall, on an annual basis, carry out checks to ascertain if court friends are complying with subsections (6) and (7).

(9) A court friend for a relevant person shall assist and attend with the relevant person in court or, if the relevant person is not attending the hearing concerned, promote the interests and the will and preferences of the relevant person in court.

(10) A court friend for a relevant person may attend and represent the relevant person at any meeting, consultation or discussion, in connection with an application under Part 5 in respect of which the relevant person is the subject, at which the interests or the will and preferences of the relevant person are being considered, whether or not the relevant person is attending the meeting, consultation or discussion, as the case may be.

(11) A court friend for a relevant person may be appointed for such term and subject to such conditions, and may be paid such remuneration and allowances, as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.

(12) Subsections (2) to (10) shall, with all necessary modifications, apply to a person who falls within paragraph (b) of section 36(8) in respect of a relevant person and to the application under Part 5 which relates to the relevant person as those subsections apply to a court friend for a relevant person and to the application under Part 5 which relates to the second-mentioned relevant person.

101. Panels to be established by the Director

101. The Director shall establish a panel of suitable persons willing and able to act as—

F145[(a) decision-making representatives for—

(i) relevant persons in the circumstances to whichsection 38(7)applies, and

(ii) persons the subject of a discharge from wardship undersection 55(4)(ii)or55(5)(b), as the case may be, in the circumstances to whichsection 38(7)applies by virtue ofsection 55(6),]

(b) special visitors,

(c) general visitors, and

(d) court friends.

Chapter 4

102. Reports by Director

102. (1) The Director shall, not later than 31 March in each year, submit to the Mental Health Commission a report on the Director’s activities in the immediately preceding calendar year or, if this Part commenced during that calendar year on a date other than 1 January, the period on and from that commencement to and including the immediately preceding 31 December.

F146[(2) The Mental Health Commission shall cause a copy of a report submitted to it pursuant tosubsection (1)to be forwarded to the Minister for Health and the Minister as soon as may be, but not later than 3 months after the date on which the Commission received the report.]

(3) The F146[Mental Health Commission shall], within 2 years but not earlier than one year from the date of commencement of Part 9, submit to the F146[Minister and the Minister for Health] a report—

(a) on the effectiveness of the Director,

(b) on the adequacy of the functions assigned under this Act to the Director, and

(c) containing such recommendations (if any) that the F146[Mental Health Commission considers would improve the effectiveness of the Director] or the adequacy of the functions assigned to the Director under this Act, or both.

(4) F147[…]

(5) At the end of each 5 year period commencing on the date of commencement of Part 9, the F146[Mental Health Commission shall submit to the Minister] and the Minister for Health a report reviewing the general performance of the objectives and functions of the Director in the previous 5 years.

(6) The Director may make any F147[…] reports that he or she considers appropriate for drawing to the attention of the Mental Health F146[Commission, the Minister and] the Minister for Health matters that have come to his or her notice and that, in his or her opinion, should, because of their gravity or other exceptional circumstances, be the subject of a special report to the Mental Health F146[Commission, the Minister and] the Minister for Health.

(7) As soon as practicable after receiving a report under this section, the Minister F147[…] shall cause a copy of it to be laid before each House of the Oireachtas.

103. Codes of practice

103. (1) In this section—

“body concerned”, in relation to a person concerned, means the body responsible for hearing complaints about failures to maintain professional standards in respect of the profession practised by the person concerned;

“code of practice” includes part of a code of practice and, in relation to a code of practice published or approved of under subsection (2), means such code as may be in force from time to time under this section;

“person concerned”, in relation to a code of practice, means a person for whom the code is providing guidance.

(2) The Director may—

(a) prepare and publish a code of practice,

(b) request another body to prepare a code of practice, or

(c) approve of a code of practice prepared by another body, whether or not pursuant to a request referred to in paragraph (b),

for the purposes of one or more of the following:

(i) the guidance of persons, including healthcare professionals, F148[on supporting decision-making by relevant persons and, where appropriate, assessing] whether a person lacks capacity in relation to any matter;

(ii) the guidance of decision-making assistants;

(iii) the guidance of co-decision-makers;

(iv) the guidance of decision-making representatives;

(v) the guidance of attorneys;

(vi) the guidance of special visitors;

(vii) the guidance of general visitors;

(viii) the guidance of court friends;

(ix) the guidance of healthcare professionals as respects the circumstances in which urgent treatment may be carried out without the consent of a relevant person and what type of treatment may be provided;

(x) the guidance of persons acting as advocates on behalf of relevant persons;

F149[(xa) the guidance of committees and any other persons assisting a ward in court;]

F148[(xi) the guidance of other persons, including healthcare professionals, legal practitioners and financial service providers, in relation to their dealings with—

(I) relevant persons, or

(II) wards of court in relation to proceedings underPart 6;]

(xii) with respect to such other matters concerned with this Act as the Director thinks appropriate.

(3) Where the Director is minded to exercise his or her power under subsection (2)(a) or (b), he or she shall consult with such persons as the Director considers appropriate having regard to the matters to which it is intended that the code, when it is prepared, will relate and such persons may include any of the following:

(a) the Health Service Executive;

(b) the Health Information and Quality Authority;

(c) the National Disability Authority;

(d) the Citizens Information Board;

(e) representatives of professional bodies in the healthcare, social care, legal and financial sectors;

(f) representatives of healthcare, social care, legal and financial F148[professionals;]

F149[(g) persons who have a disability within the meaning of section 2 (1) of the Disability Act 2005, their representative organisations, or any other persons with expertise in matters pertaining to disability.]

(4) The Director shall, before publishing a code of practice pursuant to his or her power under subsection (2)(a) or approving of a code of practice pursuant to his or her power under subsection (2)(c)—

(a) make available, to the persons whom the Director considers appropriate having regard to the matters to which the code relates (which may be any of the persons who fall within paragraphs (a) to (d) of subsection (3) ), in such manner as the Director considers appropriate, a draft of the code,

(b) invite the persons to whom he or she has made the draft available to make representations in writing on it to the Director within a period determined by the Director, being a period of not less than 30 days from the date of making the draft available to those persons,

(c) consider the representations (if any) received, and

(d) make any modifications that he or she considers appropriate to the draft.

(5) The Director shall not publish or approve of a code of practice under subsection (2) except with the consent of—

(a) if the code does not relate to healthcare matters, the Minister after consultation with the Mental Health Commission F150[…] and

(b) if the code relates (whether in whole or in part) to healthcare matters, the Minister for Health after consultation with the Minister and the Mental Health Commission.

(6) Where the Director publishes or approves of a code of practice under subsection (2), he or she shall cause a notice to that effect to be published in Iris Oifigiúil and such notice shall specify—

(a) the persons or classes of persons for whom the code is providing guidance,

(b) the date from which the code has effect, and

(c) the place where a copy of the code may be viewed, inspected or purchased.

(7) The Director shall keep posted, on the Internet website of the Director established under section 95(1)(j) or by the other electronic means referred to in section 95(1)(j) a copy of each code of practice published or approved of under subsection (2), as the code is in force from time to time, on and from the date on which the code has effect.

(8) The Director shall arrange for that part of the Internet website or other electronic means referred to in section 95(1)(j) which contains a code of practice pursuant to subsection (7) to ordinarily be accessible by members of the public.

(9) Subject to subsection (10), the Director may—

(a) amend or revoke a code of practice published under subsection (2), or

(b) withdraw approval of any code of practice approved of under subsection (2).

(10) Subsections (3) to (5) shall, with all necessary modifications, apply to a code of practice that the Director proposes to amend or revoke, or withdraw his or her approval of, under subsection (9) as subsections (3) to (5) apply to a code of practice that the Director proposes to publish or approve of under subsection (2).

(11) Where the Director amends or revokes, or withdraws his or her approval of, a code of practice published or approved of under subsection (2), the Director shall cause a notice to that effect to be published in Iris Oifigiúil and on the Internet website or by other electronic means referred to in section 95(1)(j) specifying—

(a) the code to which the amendment, revocation or withdrawal of approval, as the case may be, relates and, if applicable, particulars of the amendment,

(b) the persons or classes of persons in respect of whom the code is so amended, revoked or approval is withdrawn, as the case may be, and

(c) the date from which the amendment, revocation or withdrawal of approval, as the case may be, shall have effect.

(12) A document bearing the seal of the Mental Health Commission and purporting to be a code of practice published or approved of under subsection (2) or, where such a code has been amended under this section, the code as so amended, shall be admissible in any legal proceedings.

(13) A person concerned shall have regard to a code of practice published or approved of under subsection (2) when performing any function under this Act in respect of which the code provides guidance.

(14) Where it appears to a court, tribunal, or body concerned, conducting any proceedings that—

(a) a provision of a code of practice published or approved of under subsection (2), or

(b) a failure to comply with a code of practice published or approved of under subsection (2),

is relevant to a question arising in the proceedings, the provision or failure, as the case may be, shall be taken into account in deciding the question.

(15) To the extent that a code of practice published or approved of under subsection (2) is for the purposes of court friends, the provisions of the code shall, with all necessary modifications, apply to a person who falls within paragraph (b) of section 36(8) in respect of a relevant person as those provisions apply to a court friend for a relevant person.

(16) A code of practice published or approved of under subsection (2) shall not relate to any of the provisions of Part 8.

PART 10 Detention Matters

104. Definitions — Part 10

104. In this Part—

“approved centre” has the meaning assigned to it by section 2 of the Act of 2001;

“clinical director” has the meaning assigned to it by section 2 of the Act of 2001;

“consultant psychiatrist” has the meaning assigned to it by section 2 of the Act of 2001;

“detention order”—

(a) in section 107, means an order referred to in subsection (1) of that section, and

(b) in section 108, means an order referred to in subsection (1) of that section;

“independent consultant psychiatrist” means a consultant psychiatrist who is a member of the panel established under section 105;

“mental disorder” has the meaning assigned to it by section 3 of the Act of 2001;

“person concerned” means the person the subject of a detention order.

105. Panel of independent consultant psychiatrists to be established by Mental Health Commission

105. The Mental Health Commission shall establish a panel of suitable consultant psychiatrists willing and able to carry out independent medical examinations for the purposes of this Part.

106. Detention-related safeguards

106. Where an issue arises in the course of an application to the court or the High Court under this Act, or otherwise in connection with the operation of this Act, as to whether a person who lacks capacity is suffering from a mental disorder, the procedures provided for under the Act of 2001 shall be followed as respects any proposal to detain that person.

107. Review of detention orders in certain circumstances (approved centres)

107. (1) Where, immediately before the commencement of this section, a person is detained in an approved centre on the order of a wardship court and, from that commencement, continues to be so detained, that order shall, as soon as possible, be reviewed by the wardship court in accordance with subsection (2).

(2) Where, on a review of a detention order, the wardship court is satisfied that the person concerned is suffering from a mental disorder, it may direct that the detention of the person concerned in the approved centre, or such other approved centre as may be determined by the wardship court having obtained the views of the clinical director of that other centre, shall continue for such further period, not exceeding 3 months, and not exceeding 6 months in the case of any subsequent review carried out by the wardship court under subsection (3), as the wardship court may determine.

(3) Before the period referred to in subsection (2), or such other period as may be determined by the wardship court, expires, the wardship court shall review the continued detention of the person concerned in the approved centre and, if satisfied that the person concerned is suffering from a mental disorder, may direct that the person concerned shall continue to be detained in that centre or such other approved centre as may be determined by the wardship court having obtained the views of the clinical director of that other centre.

F152[(3A) A person detained pursuant to a direction made undersubsection (3)for a period exceeding 3 months (in this subsection referred to as a "renewal period") or his or her committee or legal representative, may, after a period of 3 months has expired from the date the direction was made but before the expiry of the renewal period, make an application to have the person’s detention reviewed by the wardship court undersubsection (3)and no more than one such application may be made in each renewal period.]

(4) Where the wardship court determines that the person concerned is no longer suffering from a mental disorder, it shall order the discharge of the person concerned from detention.

(5) The wardship court, when reviewing a detention order, shall hear evidence from the consultant psychiatrist responsible for the care or treatment of the person concerned and from an independent consultant psychiatrist selected by the wardship court.

(6) The function of the independent consultant psychiatrist referred to in subsection (5) is to examine the person concerned and report to the wardship court on the results of the examination, in particular whether, in the opinion of the psychiatrist, the person concerned is suffering from a mental disorder.

108. Review of detention orders in certain circumstances (non-approved centres)

108. (1) Where, immediately before the commencement of this section, a person is detained in an institution other than an approved centre on the order of a wardship court and, from that commencement, continues to be so detained, that order shall, as soon as possible, be reviewed by the wardship court in accordance with subsection (2).

(2) Where, on a review of a detention order, the wardship court is satisfied that the person concerned is suffering from a mental disorder, it may direct that the detention of the person concerned in the institution, or in such other place, being an approved centre, as may be determined by the wardship court having obtained the views of the clinical director for that other place, shall continue for such further period, not exceeding 3 months, and not exceeding 6 months in the case of any subsequent review carried out by the wardship court under subsection (3), as the wardship court may determine.

(3) Before the period referred to in subsection (2), or such other period as may be determined by the wardship court, expires, the wardship court shall review the continued detention of the person concerned in the institution or approved centre concerned and, if satisfied that the person concerned is suffering from a mental disorder, may direct that the person concerned shall continue to be detained, whether in the institution where the person concerned was first detained or in an approved centre determined in accordance with subsection (2) on a first or subsequent review.

F153[(3A) A person detained pursuant to a direction made undersubsection (3)for a period exceeding 3 months (in this subsection referred to as a "renewal period") or his or her committee or legal representative, may, after a period of 3 months has expired from the date the direction was made but before the expiry of the renewal period, make an application to have the person’s detention reviewed by the wardship court undersubsection (3)and no more than one such application may be made in each renewal period.]

(4) Where the wardship court determines that the person concerned is no longer suffering from a mental disorder, it shall order the discharge of the person concerned from detention.

(5) The wardship court, when reviewing a detention order, shall hear evidence from the consultant psychiatrist responsible for the care or treatment of the person concerned and from an independent consultant psychiatrist selected by the wardship court.

(6) The function of the independent consultant psychiatrist referred to in subsection (5) is to examine the person concerned and report to the wardship court on the results of the examination, in particular whether, in the opinion of the psychiatrist, the person concerned is suffering from a mental disorder.

PART 11 Convention on International Protection of Adults

Chapter 1

109. Interpretation — Part 11

109. (1) In this Part—

“adult” means a person who—

(a) as a result of an impairment or insufficiency of his or her personal faculties, cannot protect his or her interests, and

(b) has reached 18 years of age;

“central authority in another Convention country” means the authority designated by that country pursuant to the Convention;

“central authority in the State” means the authority mentioned in section 113;

“Convention” means the Convention on the International Protection of Adults agreed at The Hague on 13 January 2000 (the text of which, in the English language, is for convenience of reference set out in the Schedule);

“Convention country” means a country in which the Convention is in force;

“measure” has the meaning assigned to it by section 112(1).

(2) An expression which appears in this Part and in the Convention is to be construed in accordance with the Constitution.

(3) The High Court, court and the Director, in interpreting this Part and the Convention, may have regard to the Explanatory Report on the Convention by Mr. Paul Lagarde of 5 January 2000, edited by the Permanent Bureau of the Hague Conference on Private International Law.

110. Convention given effect

110. This Part—

(a) gives effect in the State to the Convention in so far as this Act does not otherwise do so, and

(b) makes related provision as to the private international law of the State.

111. Countries, territories and nationals

111. (1) In this section “country” includes a territory which has its own system of law.

(2) Where a country has more than one territory with its own system of law, a reference to the country, in relation to one of its nationals, is to the territory with which the national has the closer, or the closest, connection.

112. Protective measures

112. (1) In this section “ measure ” means a measure directed to the protection of the person or property of an adult, including any of the following:

(a) the determination of incapacity and the institution of a protective regime;

(b) placing the adult under the protection of a judicial or administrative authority;

(c) guardianship, curatorship or any corresponding system;

(d) the designation and functions of a person having charge of the adult’s person or property, or representing or otherwise helping him or her;

(e) placing the adult in a place where protection can be provided;

(f) administering, conserving or disposing of the adult’s property;

(g) authorising a specific intervention for the protection of the person or property of the adult.

(2) Where a measure of like effect to a measure has been taken in relation to a person before he or she reached 18 years of age, this Part applies to the measure in so far as it has effect in relation to him or her once he or she has reached that age.

113. Central authority

113. The Director is designated to perform in the State the functions conferred on the central authority in the State under this Part or by virtue of the Convention.

Chapter 2

114. Scope of jurisdiction

114. (1) The High Court and the court may exercise their functions under this Part (in so far as they cannot otherwise do so) in relation to—

(a) an adult habitually resident in the State,

(b) an adult’s property in the State, insofar as the exercise of those functions is compatible with measures taken by the authorities of a Convention country having jurisdiction under Articles 5 to 8 of the Convention,

(c) subject to Article 10 of the Convention, an adult present in the State or who has property there, if the matter is urgent, or

(d) subject to Article 11 of the Convention, an adult present in the State, insofar as the exercise of those functions is temporary and limited to the State.

(2) An adult present in the State shall be treated for the purposes of this section and Articles 6 and 7 of the Convention as habitually resident there if—

(a) his or her habitual residence cannot be ascertained,

(b) he or she is a refugee, or

(c) he or she has been displaced as a result of disturbance in the country of his or her habitual residence.

115. Provisions supplementary to section 114

115. (1) The High Court and the court may also exercise their functions under this Part (in so far as they cannot otherwise do so) in relation to an adult if subsection (2) or (3) applies in relation to him or her.

(2) This subsection applies in relation to an adult if—

(a) he or she is an Irish citizen, and

(b) Article 7 of the Convention has, in relation to the matter concerned, been complied with.

(3) This subsection applies in relation to an adult if the High Court or the court, as the case may be, having consulted such person as it considers appropriate, agrees to or makes a request under Article 8 of the Convention in relation to the adult.

116. Exercise of jurisdiction

116. Measures taken by the High Court or the court, as the case may be, under this Part remain in force so long as the competent authorities in a Convention country have not modified, replaced or terminated such measures.

Chapter 3

117. Applicable law

117. In exercising jurisdiction under Chapter 2, the High Courtor the court, as the case may be, shall apply the law of the State but may, in so far as the protection of the person or the property of the adult requires, if it thinks that the matter has a substantial connection with a country other than the State, apply or take into consideration the law of that other country.

118. Provisions supplementary to section 117

118. Where a measure is taken in one Convention country but implemented in another, the conditions of implementation are governed by the law of the Convention country in which implementation occurs.

119. Enduring powers of attorney, etc.

119. (1) If the donor of an enduring power is habitually resident in the State at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—

(a) the law of the State, or

(b) if he or she specifies in writing the law of a connected country for the purpose, that law.

(2) If the donor of an enduring power is habitually resident in another country at that time, but the State is a connected country, the law applicable in that respect is—

(a) the law of the other country, or

(b) if he or she specifies in writing the law of the State for the purpose, that law.

(3) A country is connected, in relation to the donor, if it is a country—

(a) of which he or she is a national,

(b) in which he or she was habitually resident, or

(c) in which he or she has property.

(4) Where this section applies as a result of subsection (3)(c), it applies only in relation to the property which the donor has in the connected country.

(5) The law applicable to the manner of the exercise of an enduring power is the law of the country where it is exercised.

(6) In this Chapter “enduring power” means—

(a) an enduring power of attorney as provided for in section 59, or

(b) any other power of like effect.

120. Disapplication or modification of enduring power of attorney, etc.

120. (1) Where an enduring power is not exercised in a manner sufficient to guarantee the protection of the person or pro perty of the donor, the High Court or the court, as the case may be, in exercising jurisdiction under this Part, may disapply or modify the power.

(2) Where, in accordance with this Chapter, the law applicable to the power is, in one or more respects, that of a country other than the State, the High Court or the court, as the case may be shall, so far as possible, take into consideration the law of the other country in that respect (or those respects).

121. Protection of third parties

121. (1) This section applies where a person (in this section referred to as a “representative”) in purported exercise of an authority to act on behalf of an adult enters into a transaction with a third party.

(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in the State when entering into the transaction,subsection (3) applies, or

(b) where they are in another country at that time,subsection (4) applies.

(3) This subsection applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part, the law of a country other than the State, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This subsection applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Chapter, the law of the State, and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This section shall not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within subsection (3), the law of the other country,

(b) in a case within subsection (4), the law of the State.

122. Mandatory rules

122. Where the High Court or the court, as the case may be, is entitled to exercise jurisdiction under this Part, the mandatory provisions of the law of the State apply, regardless of any system of law which would otherwise apply in relation to the matter.

123. Public policy

123. Nothing in this Part requires or enables the application in the State of a provision of the law of another country if its application would be manifestly contrary to public policy.

Chapter 4

124. Recognition

124. (1) A measure taken in relation to an adult under the law of a Convention country other than the State is to be recognised in the State if it was taken on a ground mentioned in Chapter II (Jurisdiction) of the Convention.

(2) The High Court or the court, as the case may be, may refuse recognition of a measure if it is of the view that—

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(c) that omission amounted to a breach of natural justice.

(3) The High Court or the court, as the case may be, may refuse to recognise a measure if it is of the view that—

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law of the State, or

(c) the measure is inconsistent with one subsequently taken, or recognised, in the State in relation to the adult.

(4) The High Court or the court, as the case may be, may refuse recognition of a measure taken under the law of a Convention country other than the State in a matter to which Article 33 of the Convention applies if it is of the view that that Article has not been complied with in connection with that matter.

125. Application to High Court or court for declaration on measure

125. (1) Subject to section 124, an interested person may apply to the court for a declaration as to whether a measure taken under the law of a Convention country other than the State is to be recognised in the State.

(2) No permission is required for an application to the court under this section.

126. Provisions supplementary to sections 124 and 125

126. For the purposes of sections 124 and 125, any finding of fact by a competent authority in a Convention country other than the State is conclusive.

127. Enforcement

127. (1) An interested person may apply to the High Court or the court for a declaration as to whether a measure taken under the law of, and enforceable in, a Convention country other than the State is enforceable in the State.

(2) The High Court or the court, as the case may be, shall make the declaration if—

(a) the measure falls within section 124(1), and

(b) it has not refused recognition of the measure pursuant to section 124(2), (3) or (4).

(3) A measure to which a declaration under this section relates is enforceable in the State as if it were a measure of like effect taken by the High Court or the court, as the case may be.

128. Measures taken in relation to those aged under 18

128. (1) This Part applies to persons who have attained the age of 18 years.

(2) Where a measure was taken in respect of a person who had not attained the age of 18 years at the time the measure was taken, this Part applies to those measures insofar as the person concerned has attained the age of 18 years.

129. Review of measures taken outside State

129. The High Court and the court may not review the merits of a measure taken in a Convention country other than the State except to establish whether the measure complies with this Part in so far as it is, as a result of this Part, required to do so.

130. Rules of court

130. Rules of court may make provision about an application under section 125 or 127.

Chapter 5

131. Proposal for cross-border placement

131. (1) This section applies where it is proposed to place an adult in an establishment in a Convention country other than the State.

(2) The central authority in the State shall consult the central authority in another Convention country or other competent authority in the Convention country concerned about the proposed placement and, for that purpose, shall send it—

(a) a report on the adult, and

(b) a statement of the reasons for the proposed placement.

(3) If the central authority in another Convention country or other competent authority in the Convention country concerned opposes the proposed placement within a reasonable time, the proposed placement may not be proceeded with.

132. Proposal received by central authority under Article 33 of the Convention

132. A proposal received by the central authority in the State under Article 33 of the Convention in relation to an adult is to proceed unless the central authority in the State opposes it within a reasonable time.

133. Requests to be communicated through central authority

133. (1) Where a measure is contemplated by the High Court or the court, the central authority in the State may request the central authority in another Convention country or other competent authority in that Convention country to communicate information relevant to the protection of the adult concerned.

(2) Requests for information by a central authority in another Convention country or other competent authority in that Convention country shall be communicated through the central authority in the State.

134. Adults in danger, etc.

134. (1) This section applies if the central authority in the State is informed that an adult—

(a) who is in serious danger, and

(b) in relation to whom the High Court or the court, as the case may be, has taken, or is considering taking, measures,

is, or has become, resident in a Convention country other than the State.

(2) The central authority in the State shall inform the central authority in another Convention country or other competent authority in that Convention country regarding—

(a) the danger, and

(b) the measures taken or under consideration.

135. Circumstances in which co-operation is prohibited

135. The central authority in the State shall not request from, or send to, a central authority in another Convention country or other competent authority in that Convention country information in accordance with Chapter V (Co-operation) of the Convention in relation to an adult if it is of the opinion that doing so—

(a) would be likely to endanger the adult or his or her property, or

(b) would amount to a serious threat to the liberty or life of a member of the adult’s family.

PART 12 Miscellaneous

136. Patients whose treatment is regulated by Part 4 of Act of 2001

136. (1) Nothing in this Act authorises a person—

(a) to give a patient treatment for mental disorder, or

(b) to consent to a patient’s being given treatment for mental disorder,

if, at the time when it is proposed to treat the patient, his or her treatment is regulated by Part 4 of the F154[Act of 2001, unless the patient is a person detained under the Act of 2001 on the grounds that he or she is suffering from a mental disorder within the meaning ofsection 3(1)(b)of that Act].

F155[(1A) Subject tosubsection (1)—

(a) a reference in section 56, 57, 59 or 60 of the Act of 2001 to a "patient" in the context of the patient giving his or her consent shall include a decision-making representative appointed in respect of the patient and in respect of a matter to which the relevant consent relates, and

(b) a patient shall not be regarded as incapable or unable to give consent for the purposes of section 57, 59 or 60, as the case may be, of the Act of 2001 where a decision-making representative is appointed in respect of the patient and in respect of a matter to which the relevant consent relates.]

(2) In this section “mental disorder”, “patient” and “treatment” have the same meaning as in the Act of 2001.

137. Payment for necessary goods and services

137. (1) A person who lacks capacity to enter into a contract for the sale of goods or services shall pay the supplier a reasonable sum for goods or services supplied at his or her request only if the goods or services are suitable to the person’s—

(a) condition in life, and

(b) actual requirements,

at the time when the goods or services, as the case may be, are so supplied.

(2) Section 2 of the Sale of Goods Act 1893 is amended by deleting “mental incapacity or”.

138. Consent and capacity in specific matters

138. Unless otherwise expressly provided, nothing in this Act shall be construed as altering or amending the law in force on the coming into operation of this section relating to the capacity or consent required as respects a person in relation to any of the following:

(a) marriage;

(b) civil partnership;

(c) judicial separation, divorce or a non-judicial separation agreement;

(d) the dissolution of a civil partnership;

(e) the placing of a child for adoption;

(f) the making of an adoption order;

(g) guardianship;

(h) sexual relations;

(i) serving as a member of a jury.

139. Application under Part 5, 7 or 8 to be heard in presence of relevant person or persons concerned

139. (1) An application to the court or the High Court under Part 5 (including an application under section 48), 7 or 8 shall be heard in the presence of the relevant person the subject of the application unless, in the opinion of the court or the High Court, as the case may be—

(a) the fact that the relevant person is not or would not be present in court would not cause an injustice to the relevant person,

(b) such attendance may have an adverse effect on the health of the relevant person,

(c) the relevant person is unable, whether by reason of old age, infirmity or any other good and substantial reason, to attend the hearing, or

(d) the relevant person is unwilling to attend.

F156[(1A)Subsection (1)shall, with all necessary modifications, apply to a review underPart 6by the wardship court of the capacity of a ward as it applies to an application underPart 5, 7or8to the court or High Court in respect of the relevant person the subject of the application.]

(2)Subsection (1) shall, with all necessary modifications, apply to a review under Part 10 by the wardship court of a detention order in respect of the person concerned (within the meaning of section 104) as it applies to an application under Part 5, 7 or 8 to the court or High Court in respect of the relevant person the subject of the application.

140. Wills

140.Nothing in this Act shall be construed as altering or amending the law relating to the capacity of a person to make a will.

141. Appeals

141. An appeal lies—

(a) to the High Court from a decision of the Circuit Court exercising any jurisdiction under this Act, and

(b) to the—

(i) Court of Appeal from a decision of the High Court, or

(ii) to the Supreme Court from the High Court in the circumstances laid down in Article 34.5.4 of the Constitution,

on a point of law only.

142. Amendment of section 26A of Courts (Supplemental Provisions) Act 1961

142. Section 26A (inserted by section 189 of the Personal Insolvency Act 2012) of the Courts (Supplemental Provisions) Act 1961 is amended—

(a) by inserting the following after subsection (2):

“(2A) The functions, power and jurisdiction conferred on the Circuit Court by the Assisted Decision-Making (Capacity) Act 2015 may, subject to this section, be performed and exercised by a specialist judge.”,

and

(b) in subsection (5), by deleting “subsections (2) and (3) ” and substituting “subsections (2), (2A) and (3) ”.

143. Amendment of Civil Registration Act 2004

143. The Civil Registration Act 2004 is amended—

(a) in section 2(2), by substituting the following for paragraph (d):

“(d) one of the parties to the proposed marriage lacks, or both of the parties to the proposed marriage lack, the capacity (within the meaning of the Assisted Decision-Making (Capacity) Act 2015) to consent to the marriage,”

(b) F157[…]

(c) in section 58—

(i) in subsection (9)(a), by substituting “Subject to subsection (12), a party ” for “A party”, and

(ii) by substituting the following for subsection (11):

“(11) An objection on the ground that one of the parties to the proposed marriage lacks, or both of the parties to the proposed marriage lack, the capacity to consent to the marriage shall be accompanied by—

(a) a copy of a declaration by the Circuit Court under section 37(1) of the Assisted Decision-Making (Capacity) Act 2015 that one of the parties to the proposed marriage lacks, or both of the parties to the proposed marriage lack, the capacity to make a decision to consent to being married,

(b) a copy of a declaration by the Circuit Court under section 37(1) of the Assisted Decision-Making (Capacity) Act 2015 that one of the parties to the proposed marriage lacks, or both of the parties to the proposed marriage lack, the capacity to make the class of decisions specified in the declaration where the decision to consent to being married is a decision which falls within that class of decisions, or

(c) a copy of an application made under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 (accompanied by a copy of a related interim order of the Circuit Court under that Part) to the Circuit Court by the person making the objection where the application relates (whether in whole or in part) to the capacity of one of the parties, or both of the parties, to the proposed marriage to make a decision to consent to being married.

(12) Without prejudice to section 141 of the Assisted Decision-Making (Capacity) Act 2015, subsection (9) shall not apply to a decision referred to in that subsection to the extent that the decision relates to an objection referred to in subsection (11).”,

and

(d) F157[…]

144. Amendment of Act of 2001

144. F158[…]

145. Offence of ill-treatment or wilful neglect

145. A decision-making assistant, co-decision-maker, decision-making representative, F159[attorney or designated healthcare representative for a relevant person] who ill-treats or wilfully neglects the relevant person shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine and imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

146. F160[Review of this Act

146.The Minister, after consultation with the Minister for Health shall, not later than 5 years after the date on whichsection 95of the Assisted Decision-Making (Capacity) (Amendment) Act 2022 comes into operation, conduct a review of the operation and effectiveness of the Assisted Decision-Making (Capacity) Act 2015 and shall, not later than 6 months after the end of that period of 5 years, or on the completion of the review, whichever is the earlier, prepare a report, in writing, of the findings of the review and of the conclusions drawn from those findings and cause copies of the report to be laid before each House of the Oireachtas.]