Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 7:

In page 10, line 27, to delete “section 16” and substitute “section 13”.

These amendments arise from the decision that entry into co-decision-making should be a voluntary choice and not a matter of court order and that autonomy for the administration of co-decision-making should rest with the decision support services formerly referred to as the Office of Public Guardian rather than the courts. Whereas the published Bill provides for a court order approving a co-decision-making agreement made voluntarily between two persons, an appointer and a co-decision-maker, on the basis of a court order finding that the appointer lacks capacity but with the assistance of a suitable co-decision-maker or makers, the new proposed system essentially transfers the responsibility for the approval of the decision to the decision support service. Under the new approach the relevant person will choose a trusted co-decision-maker and can receive advice and support from the decision support service. On drawing up the co-decision-making agreement, the service will verify that everything is in order and that the relevant person is making the agreement freely. It will then register the agreement whereupon it will come into effect.

The service itself will not make the finding that the appointer lacks capacity, without assistance. That assistance is provided by a medical doctor and another health care professional, to be identified in ministerial regulation. The advantages of the new approach will be that the entry procedure will be undertaken in a non-intimidatory and non-adversarial environment which will be less stressful for the person with capacity difficulties. The person will retain greater control over the process as the only action available to the decision support service will be to register the agreement or not to register. It will not be possible for the service to force the person into a more intrusive option as the court can do under the provisions as published. There will be less pressure on court resources. In terms of the ongoing input of the courts, legal advice to the Department has been that the director's discretion in assessing applications must be confined to straightforward situations which will be the majority of cases and that questions such as the appropriateness of a co-decision-maker or the capacity of the relevant person must be referred to the courts. Determination of whether a person has capacity is a judicial function and where there is an objection or dispute relating to the person's capacity for entering into co-decision-making, it is not appropriate for the director to make such a decision. Similarly, allegations of fraud in certain contexts which is a criminal offence, are not suitable for a non-judicial person to make a finding on.

The policy decision has necessitated a great number of textual changes and it has been considered that the best way to do this is by means of inserting a new Part, new sections 13 to 28, and deleting Chapter 4, sections 16 to 22. Additional consequential changes elsewhere throughout the text of the Bill are also addressed in this grouping. The new Part is inserted by means of amendments Nos. 86 to 101, inclusive. The consequential changes are addressed here by amendments Nos. 7, 9, 10, 28, 36, 105, 113, 120, 122, 123 and 202.