Dáil Éireann Debate, Tuesday - 25 July 2023
973. Deputy Paul McAuliffe asked the Minister for Children, Equality, Disability, Integration and Youth if it is planned to include care representatives appointed under section 21 of the Nursing Homes Support Scheme Act 2009 in the list of exempted categories in section 36(4) of the Assisted Decision-Making (Capacity) Act 2015; and if he will make a statement on the matter. [35626/23]
View answerThere are no immediate plans to utilise the Regulation making power under section 36(4) of the Assisted Decision-Making (Capacity) Act 2015, as amended, in order to add to the current list of persons who do not require the prior consent of the court to make a Part 5 application.
Any such Regulation will need to follow a period of operation of the new legislation so that an assessment can be undertaken in order to make sure that any change to the current list of exemptions is properly evidence based and balances the operational needs of the Act with the ongoing focus on appropriate safeguards. My clear focus is on making sure that the new system of supported decision making works smoothly and in a manner that ensures persons are not inappropriately placed into higher tiers of support than may be required.
Section 36 specifies that in general terms an application to appoint a decision making representative (a Part 5 application) can only be made by a person who has first secured the leave of the court to bring such an application. This is an important safeguard in ensuring that the higher tier of supports under the Act is only used in circumstances where it is absolutely necessary to do so. This is because the Act operates on the basis that persons should be assisted in making their own decisions to the greatest extent possible and therefore should receive assistance at the lowest and least intrusive tier of support that is appropriate to their needs. In that context it should be noted that for many persons it is considered that a co-decision making agreement may be more suitable and less intrusive than the appointment of a decision making representative, and that the process for creating such an agreement is simpler and less costly.
Section 36(4) sets out the persons who are exempt from needing to seek leave of the court in advance of making a Part 5 application and in the main references very close relatives and existing decision supporters.
The purpose of the Regulation making power in section 36(4) is to allow for potential future expansion of the list of persons who do not need to receive the prior consent of the court before making a Part 5 application.
While I am open to the expansion of this list where there is a clear operational need and where safeguarding concerns do not arise or can be properly balanced, a period of operation of the Act is required before an accurate assessment can be made in this regard. My Department is carefully monitoring the operation of the Act and is mindful of the issue raised by the Deputy.
