I move amendment No. 4:
In page 6, after line 34, to insert the following:
“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.”.”.
This amendment provides for and clarifies the geographical jurisdiction of the Circuit Court so there is no ambiguity as to which circuit should deal with an application made to it. These updates are largely by way of technical amendments but will provide clarity to the Circuit Court system and practitioners.
The amendment also introduces a new subsection (5), which clarifies the inherent jurisdiction of the High Court in matters regarding treatment and detention orders which the court possesses under the Constitution and clarifies that that remains, notwithstanding the provisions of the 2015 Act. While it would be wholly inappropriate for a decision supporter to ever restrain or detain a relevant person, and indeed, as we know, the amendment Bill removes provisions that enable the use of restraints, a legal vehicle for the care and treatment of persons who are in detention outside of the area of capacity is still required. The amendment clarifies that following the abolition of wardship, such matters are proper to the High Court, having regard to the individual circumstances of the case and the protections that are provided within the case law of the Irish courts.
I will bring further related amendments on Committee Stage in the Seanad regarding the review of detention of existing wards under sections 107 and 108.
