Assisted Decision-Making (Capacity) (Amendment) Act 2022

PART 1 Preliminary and General

1. Short title, collective citation, construction and commencement

1. (1) This Act may be cited as the Assisted Decision-Making (Capacity) (Amendment) Act 2022.

(2) Section 99 and the Credit Union Acts 1997 to 2020 may be cited together as the Credit Union Acts 1997 to 2022 and shall be construed together as one.

(3) Section 100 and the National Disability Authority Act 1999 may be cited together as the National Disability Authority Acts 1999 and 2022 and shall be construed together as one.

(4) Section 74 and section 91 and the Mental Health Acts 2001 to 2018 may be cited together as the Mental Health Acts 2001 to 2022 and shall be construed together as one.

(5) Subject to subsection (6), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

(6) Sections 72 to 77 shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

2. Definitions

2. In this Act, unless the context otherwise requires—

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;

“Principal Act” means the Assisted Decision-Making (Capacity) Act 2015 .

3. Repeals

3. The following provisions of the Principal Act are repealed:

(a) section 57;

(b) section 61;

(c) section 62;

(d) section 70;

(e) section 93;

(f) section 144.

PART 2 Amendment of Principal Act

4. Amendment of section 2 of Principal Act

4. Section 2(1) of the Principal Act is amended—

(a) in the definition of “intervener”, by the substitution of “(d), (da), (db)” for “(d)”,

(b) in the definition of “intervention”—

(i) in paragraph (d), by the substitution of “general visitor,” for “general visitor, or”, and

(ii) by the insertion of the following paragraphs after paragraph (d):

“(da) a court friend, or

(db) a person to whom section 36(8)(b) applies,”,

(c) by the substitution of the following for the definition of “Minister”:

“‘Minister’, other than in Part 8, means the Minister for Children, Equality, Disability, Integration and Youth;”,

(d) in the definition of “personal welfare”, by the insertion of the following paragraph after paragraph (e):

“(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices;”,

(e) in paragraph (i) of the definition of “property and affairs”, by the substitution of “for the needs of other persons” for “of other persons”, and

(f) by the insertion of the following definition:

“‘treatment’, in relation to a person, means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, and includes life sustaining treatment;”.

5. Amendment of section 4 of Principal Act

5. Section 4 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “sections 37” for “sections 37, 85(6)(b)”,

(ii) by the substitution of “in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:” for “in which—”, and

(iii) by the substitution of the following paragraphs for paragraphs (a) and (b):

“(a) the relevant person (including a ward) the subject of an application under this Act;

(b) in the case of proceedings under section 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;

(c) in the case of proceedings under Part 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;

(d) in the case of proceedings under section 46 or 47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned;

(e) in the case of proceedings under Part 7—

(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or

(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996,

is the subject of an application or appeal under that Part;

(f) in the case of proceedings under section 88 or 89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;

(g) in the case of proceedings under section 125 or 127, the adult the subject of the measure that is the subject of an application under the section concerned.”,

and

(b) by the insertion of the following subsection after subsection (4):

“(5) Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.”.

6. Insertion of new section 4A into Principal Act

6. The Principal Act is amended by the insertion of the following section after section 4:

“Regulations

4A. (1) The Minister may make regulations for the purposes of this Act (other than Part 8) including regulations prescribing any matter or thing which is referred to in this Act (other than Part 8) as prescribed or to be prescribed or to be the subject of regulations made by him or her or for the purpose of enabling any provision of this Act (other than Part 8) to have full effect.

(2) Regulations under this Act (other than Part 8) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”.

7. Amendment of section 8 of Principal Act

7. Section 8(7)(d) of the Principal Act is amended—

(a) in subparagraph (i), by the substitution of “matter,” for “matter, and”,

(b) by the substitution of the following subparagraph for subparagraph (ii):

“(ii) any decision-making assistant, co-decision-maker, decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,”,

and

(c) by the insertion of the following subparagraphs after subparagraph (ii):

“(iii) any court friend or person to whom section 36(8)(b) applies, where the intervention relates to proceedings under Part 5, and

(iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,”.

8. Amendment of section 9 of Principal Act

8. Section 9 of the Principal Act is amended—

(a) in the definition of “decision-making assistant”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”, and

(b) in the definition of “decision-making assistant appointer”, by the substitution of “section 10(4) and specifications made under section 10(4A)” for “section 10(4)”.

9. Amendment of section 10 of Principal Act

9. Section 10 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”,

(b) in subsection (2), by the substitution of “subsection (4) and specifications made under subsection (4A)” for “subsection (4)”,

(c) by the substitution of the following subsection for subsection (4):

“(4) The Minister shall make regulations as respects decision-making assistance agreements, including—

(a) prescribing procedures and requirements relating to the execution, variation and revocation of a decision-making assistance agreement,

(b) specifying the personal welfare or property and affairs, or both, which may be specified in a decision-making assistance agreement,

(c) providing for the giving by the appointer of notice of the execution, variation or revocation of a decision-making assistance agreement—

(i) to the Director, and

(ii) to other specified persons, and whether or not by reference to persons who, under this Act, are required to be notified of an application made under this Act.”,

(d) by the insertion of the following subsection after subsection (4):

“(4A) The Director may, with the consent of the Minister, specify in writing the following:

(a) the form of a decision-making assistance agreement;

(b) the information to be included in or annexed to a decision-making assistance agreement for the purpose of ensuring that any document purporting to create a decision-making assistance agreement incorporates adequate information as to the effect of making or accepting the appointment;

(c) that the following statements shall be included in a decision-making assistance agreement:

(i) by the appointer, that he or she has read and understands the information as to the effect of making the appointment or that such information has been explained to the appointer, by a person other than the proposed decision-making assistant;

(ii) by the decision-making assistant, that he or she understands and undertakes to act in accordance with the functions of a decision-making assistant, including the duty to act in accordance with the guiding principles;

(d) the form of attestation of the signatures of the appointer and decision-making assistant by a person other than the appointer or the proposed decision-making assistant;

(e) the forms to be used in connection with the execution, variation and revocation of a decision-making assistance agreement; and

(f) the form of notice to be given by the appointer of the execution, variation or revocation of a decision-making assistance agreement.”.

10. Amendment of section 11 of Principal Act

10. Section 11(1) of the Principal Act is amended—

(a) in paragraph (a), by the substitution of “her, or the person or property of a child of that person” for “her”,

(b) in paragraph (b), by the substitution of “her, or a child of that person” for “her”, and

(c) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”.

11. Amendment of section 13 of Principal Act

11. Section 13(4) is amended—

(a) in paragraph (g), by the substitution of “section 15A, 34,” for “section 34,”, and

(b) in paragraph (h), by the substitution of the following subparagraph for subparagraph (iii):

“(iii) has an enduring power of attorney that is the subject of a notification that has been accepted by the Director under section 71C, or an enduring power under the Act of 1996 that has been registered, in respect of himself or herself, or”.

12. Amendment of section 14 of Principal Act

12. Section 14(1)(b) of the Principal Act is amended by the substitution of “assist” for “advise”.

13. Amendment of section 15 of Principal Act

13. Section 15 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “one or more of” for “one or both of”,

(ii) in paragraph (a)—

(I) by the substitution of “the scope of, or in breach of,” for “the scope of”, and

(II) by the substitution of “agreement, or in breach of this Act” for “agreement”,

and

(iii) in paragraph (c), by the substitution of “to enter into, or to vary or revoke, the decision-making assistance agreement” for “to enter into the co-decision-making agreement”,

(b) by the insertion of the following subsections after subsection (1):

“(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the ‘initial investigation period’).

(1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.”,

(c) in subsection (2)—

(i) by the substitution of “The Director shall, as soon as is practicable after having formed a view under subsection (1A)” for “Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint and”,

(ii) in paragraph (a), by the substitution of “complaint,” for “complaint, or”, and

(iii) by the insertion of the following paragraph after paragraph (a):

“(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that—

(i) the provision of clarification by him or her to the decision-making assistant regarding the role of the decision-making assistant would be an appropriate resolution, or

(ii) the subject matter of the complaint could be appropriately resolved under section 96(4),

the Director may, not later than 3 months after having formed a view under subsection (1A), provide the clarification referred to in subparagraph (i), or proceed to resolve the complaint as soon as possible under section 96(4), as the case may be, and”,

(d) in subsection (3), by the substitution of “3 months” for “21 days”,

(e) in subsection (4), by the substitution of “investigation, to which this section shall, with any necessary modifications, apply” for “investigation and make an application to the court for a determination in relation to any matter specified in subsection (1)”,

(f) by the insertion of the following subsections after subsection (4):

“(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may—

(a) request further information regarding the outcome of the clarification or resolution, as the case may be, or

(b) request confirmation that the complaint has been resolved,

from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate.

(4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance with subsection (2)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.”,

(g) in subsection (5)—

(i) in paragraph (a), by the deletion of “or (4) ”, and

(ii) in paragraph (b), by the substitution of “subsection (3) or (7)(b)” for “subsection (3)”,

and

(h) by the insertion of the following subsections after subsection (5):

“(6) The Director shall, in accordance with this section, investigate a complaint under subsection (1) unless in his or her opinion there has been undue delay in making the complaint.

(7) A decision by the Director under subsection (6) not to investigate a complaint—

(a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and

(b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.”.

14. Insertion of new section 15A into Principal Act

14. The Principal Act is amended by the insertion of the following section after section 15:

“Offence in relation to decision-making assistance agreement

15A. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a decision-making assistance agreement commits an offence and shall be liable—

(a) on summary conviction, to a class A fine or 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.

(2) The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a designated centre or mental health facility is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke a decision-making assistance agreement.”.

15. Amendment of section 16 of Principal Act

15. Section 16 of the Principal Act is amended, in the definition of “co-decision-maker”, by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”.

16. Amendment of section 17 of Principal Act

16. Section 17 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “this Part, regulations made under section 31 and specifications made under section 31A” for “this Part and regulations made under section 31”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) A person in relation to whom a decision-making representation order was made in circumstances where section 38(1)(a) or section 55(4) applied may appoint a co-decision-maker in accordance with this section, and this Part and the regulations and specifications made thereunder shall apply to that appointment with any necessary modifications.”,

and

(c) in subsection (3), by the substitution of “this section, regulations made under section 31 and specifications made under section 31A” for “this section and regulations made under section 31”.

17. Amendment of section 18 of Principal Act