John McGuinness
Question:387. Deputy John McGuinness asked the Minister for Justice and Equality when Part 7 of the Assisted Decision-Making (Capacity) Act 2015 will be operational. [8238/20]
View answerWednesday, 27 May 2020
Questions (387)
Written answers
As the Deputy will be aware, 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).
A number of provisions of the 2015 Act were commenced in October 2016 in order to progress the setting up of the Decision Support Service. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016), brought Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the Act, other than sections 3, 4 and 7 in Part 1 and sections 96 and 102 and Chapter 3 in Part 9, into operation on 17 October 2016. These provisions were brought into operation in order to enable the recruitment of the Director of the Decision Support Service. 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 provisions commenced in Part 8 were the definition of “Minister” in section 82; the definitions of “code of practice” and “working group” in section 91(1); and section 91(2). The commenced provisions provided 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).
Part 7 of the Act which relates to Enduring Powers of Attorney has not yet been commenced. At present, enduring powers of attorney are created under the Powers of Attorney Act 1996. When Part 7 of the Act is fully commenced, new enduring powers of attorney will be created under the 2015 Act and registered by the Director of the DSS. The implementation of the Act requires that the DSS is fully operational and in a position to offer services including the registration of enduring powers of attorney when the Act is fully commenced. A high-level Steering Group comprising senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission, the Courts Service and the HSE, together with the Director of the DSS, is overseeing the establishment and commissioning of the DSS and this work is ongoing.
The Steering Group has given detailed consideration to the feasibility of commencing the remaining uncommenced provisions of the Act (including Part 7) however, due to the complexity of the Act and the interconnectivity of its provisions, it is not possible to make any further commencement orders until the DSS is operational. The DSS, led by its Director, is working tirelessly to put in place the necessary infra-structure to support the full commencement of the Act. The infrastructure required includes, amongst many other elements, ICT capability for the DSS. These key preparations are being put in place under the oversight of the Steering Group and will allow for commencement orders for the main operative provisions of the 2015 Act to be made when the necessary preparations have been completed to enable the DSS to roll out the new decision-making support options.
The Department of Justice and Equality has sought and received funding, through the Estimates process, over the last three years to assist the DSS in delivering on its mandate. The Department is committed to seek further funding through the Estimates process in 2020 and 2021 but this will of course be subject to available exchequer funding through that process. In the interim, and subject to the funding allocation, the Department, in conjunction with the DSS, the Mental Health Commission and other stakeholders have agreed to an implementation plan which anticipates commencement of DSS services in mid-2022. There are also critical dependencies for the DSS on other organisations, including for example the Courts Service and the HSE, Departments of Health and Justice and Equality, amongst others, which need to be delivered in order to achieve this timeline. The Steering Group comprised of all of these stakeholders is meeting regularly to ensure a co-ordinated approach to the implementation of this project.