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

I move amendment No. 58:

In page 18, between lines 22 and 23, to insert the following:"(3) A decision-making assistance agreement may be revoked by the appointer or by the decision-making assistant at any time and, subject to agreement between the appointer and the decision-making assistant, may be varied at any time.".

Amendment No. 58 provides that the person with capacity difficulties and the decision-making assistant can revoke the decision-making assistance agreement at any time. It also proposes that the person with capacity difficulties and the decision-making assistant would have the possibility of varying the agreement provided that both agreed. Both could, for instance, decide to extend or restrict the areas covered by the agreement.

The proposed amendment No. 60 would enable ministerial regulations to extend to procedures for varying or revoking agreements. This would put in place extra safeguards to protect a person with capacity difficulties in a decision-making assistance agreement.

Amendment No. 61 requires that the information on drawing up an agreement must be explained to the relevant person by someone other than the proposed decision-making assistant. This is to avoid any conflict of interest. It is an extra safeguard to ensure that the person could not be persuaded to enter into an agreement by the person wishing to become the decision-making assistant without being fully aware of the implications of the agreement or, indeed, of the safeguards underpinning it.

Amendment No. 62 is intended to add an extra requirement for a decision-making assistant, namely, that he or she agrees to act in accordance with the functions of a decision-making assistant. The aim is that the decision-making assistant would agree in advance of entering the decision-making assistant agreement that he or she was prepared to comply with all of the resulting obligations, including that of acting in accordance with the guiding principles that underpin this Bill.

Amendment No. 63 proposes that the signatures of the person with capacity difficulties and the potential decision-making assistant would be attested by a third party. This is an extra safeguard against undue influence or fraud and is aimed at ensuring that the person with capacity difficulties voluntarily enters into the agreement.

Amendment No. 64 is to require that ministerial regulations should govern the notice procedures for varying and revoking decision-making assistance agreements. This is an extra safeguard to protect the person with capacity difficulties and the decision-making assistant.

Amendment No. 70 proposes that a decision-making assistance agreement could be invalidated if it conflicted with the provisions of an advance health care directive, even if that directive did not result in the appointment of a designated health care representative. This is because the Bill proposes that the advance health care directive would always take precedence over a decision-making assistance agreement for a number of reasons.

First, an advance health care directive can only be drawn up when the person has capacity while the decision-making assistance agreement is operational when a person has capacity difficulties. As a result, the advance health care directive is an accurate reflection of the person's will and preferences when he or she has capacity.

Second, it relates specifically to health care matters and is a more precise reflection of the person's will and preferences on health care than a decision-making assistance agreement which can be more general in scope. Third, the decision-making assistant is essentially an advisory role and should not extend to making decisions on the person's behalf.

Amendment No. 71 proposes to delete the provisions which restricted to the person with capacity difficulties the option of revoking or varying the decision-making assistance agreement. This is intended as a safeguard for the decision-making assistant that he or she would not be forced to remain in an agreement against his or her will or that the agreement could be varied by the person with capacity difficulties without the knowledge of the decision-making assistant or against his or her will.

Amendments Nos. 72, 74 and 75 propose to delete the phrase "or an appointer" as unnecessary. Amendment No. 73 proposes to re-order the functions of the decision-making assistant in the order of priority of the functions of the decision-making assistant. The amendment seeks to make clear that his or her primary function is to assist the person with capacity difficulties to obtain information. This is to avoid any potential confusion that a decision-making assistant is a substitute decision-maker. Instead, the role is as an information support and as an adviser.

The purpose of amendment No. 76 is to make clear that a decision-making assistance agreement does not give a decision-making assistant the right to take decisions on behalf of the person with capacity difficulties. The function of a decision-making assistant is to support a person with capacity difficulties when making decisions by sourcing information or by providing advice. The amendment seeks to reinforce the principle underpinning the Bill that everyone is presumed to have decision-making capacity unless the contrary is shown.