The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. The Act was signed into law on 30 December 2015 but has not yet been fully commenced. The Act provides for the establishment of new administrative processes and support measures, including the setting up of the Decision Support Service (DSS) within the Mental Health Commission (a body under the Department of Health).
The Director of the DSS is working towards having the Service being operational and ready for the commencement of the main provisions of the 2015 Act. A lead-in timeframe is essential to ensure that the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations will be in place. This will ensure that the DSS will have the capacity to be up and running effectively. There are many complex strands to this work, including involvement of multiple organisations, and the situation is being kept under ongoing review as the preparatory work on implementation moves forward.
A high-level Steering Group comprising senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the DSS, is overseeing the establishment and commissioning of the Decision Support Service and this work is ongoing.
A number of provisions of the 2015 Act were commenced in October 2016 in order to progress the setting up of the DSS. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016) commenced provisions of the Act to enable the recruitment of the Director of the DSS. Ms Áine Flynn was appointed Director of the DSS on 2 October 2017.
The commencement of Part 8 of the Act, which provides a legislative framework for advance healthcare directives, is a matter for the Minister for Health. The Minister for Health, under the Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016 (S.I. No. 517 of 2016), brought some provisions of Part 8 of the Act into operation on 17 October 2016. The commenced provisions provide for the establishment by the Minister for Health of a multi-disciplinary group to make recommendations to the Director of the DSS in relation to codes of practice on advance healthcare directives. In anticipation of the completion of that process, the Minister for Health commenced the remainder of section 91 on 17 December 2018 (S.I. No. 527 of 2018).
The key preparations are being put in place under the oversight of the Steering Group to allow for further commencement orders for the provisions of the 2015 Act to be made when the DSS is ready to roll out the new decision-making support options.
Work has been ongoing in the Department of Justice and Equality on the drafting of necessary amendments to the Assisted Decision-Making (Capacity) Act 2015, taking account of issues raised by the Mental Health Commission, the codes of practice working groups and submissions received from other bodies. The intention was to bring forward these amendments by way of the Disability (Miscellaneous Provisions) Bill 2016. However, when Dáil Committee Stage took place on the Bill on 30 January 2019, a number of amendments were agreed which had previously been ruled out of order by the Ceann Comhairle, thus giving rise to a procedural matter. Work is ongoing to resolve this issue.
The Deputy will understand that it is not possible for me to predict the outcome of the legislative process with regard to any Bill. Therefore I cannot predict when any amendments will be enacted.