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

I move amendment No. 38:

In page 33, to delete lines 4 to 40 and substitute the following:“22. (1) The Director shall conduct a review of each co-decision-making agreement on the Register not earlier than 3 months before and not later than 3 months after the first anniversary of the date of registration of the agreement and thereafter at intervals not exceeding 3 years.

(2) In conducting a review under this section, the Director shall carry out such reasonable enquiries, including, in particular, consulting with the appointer and co-decision-maker as well as any special visitor or general visitor who has had contact with the appointer or co-decision-maker, as he or she considers necessary to determine whether—

(a) paragraphs (e) and (f) of section 19(1)continue to apply,

(b) the co-decision-making agreement falls within section 17,

(c) the co-decision-maker has effectively performed and continues to be likely to effectively perform his or her functions as co-decision-maker,

(d) the co-decision-maker has complied with the requirements under this Act that are relevant to him or her, and

(e) the matters provided for in subparagraphs (ii) and (iii) of section 18(4)(f)continue to apply.

(3) In order to determine whether the matters provided for in subparagraphs (ii) and (iii) of section 18(4)(f)continue to apply, the Director shall require statements to that effect to be submitted to him or her by—

(a) the same registered medical practitioner who provided the original statement under section 18(4)(f)or, where that practitioner is not reasonably available, another registered medical practitioner, and

(b) the same healthcare professional who provided the original statement under section 18(4)(f)or, where that professional is not reasonably available, another healthcare professional of the class prescribed by regulations made under section 27.

(4) Where, following a review under subsection (1), the Director is of the view that one or more of the matters in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, he or she shall notify the co-decision-maker and the appointer of that view, provide reasons for same and give the appointer and the co-decision-maker an opportunity to respond within a time period specified by the Director.

(5) Where, at the expiry of the period for response specified under subsection (4) and following a review of any response submitted by the appointer or the co-decision-maker or both pursuant to that subsection, the Director remains of the view that one or more of the matters in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, he or she shall notify the appointer and the co-decision-maker of that view and make an application to the court for a determination on the matter.

(6) Where, pursuant to an application to it under subsection (5), the court determines that one or more of the criteria in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, it may determine that the co-decision-maker shall no longer act as co-decision-maker for the appointer concerned.”.

The proposed amendments to sections 22 and 23 set out the review and reporting procedures for co-decision-making agreements. Amendment No. 38 proposes the deletion of section 22, "Review of co-decision-making agreements," and the substitution of amended text. Section 22 provides for the director to review co-decision-making agreements at regular intervals. The majority of the amendments to the text are technical in nature to provide clarity.

Two substantive changes are contained in the amended text. The first substantive change increases the interval at which the director must review a co-decision-making agreement from 12 months to three years. The review will now take place every three years because an annual review would be onerous for a relevant person and for a co-decision-maker. It would introduce unnecessary uncertainty for the many people involved in such agreements that are currently working well. I am aware that there will be problems with some co-decision-making agreements and for some co-decision-makers. I have chosen to address problem situations not by imposing additional requirements on all but rather by proposing to strengthen the provisions that will operate when problems arise. Where an agreement is not working well for either the appointer or the co-decision-maker, other provisions allow the agreement to be varied or revoked. The director will continue to review reports from co-decision-makers relating to the performance of their functions annually. The reporting provisions and the proposed strengthening of the complaints system, as proposed in amendment No. 42, provide adequate safeguards to alert the director to problems with an agreement. The director will still have the discretion to review an agreement at intervals of less than three years if he or she believes it necessary. Amendment No. 53 will also provide for offences that can be incurred by the co-decision-maker if he or she subjects the relevant person to fraud, coercion or undue influence.

The second substantive change to the text of section 22 provides for the insertion of a new subsection 6. Subsection 5 allows the director to apply to the court if, following a review of a co-decision-making agreement, he or she is of the view that certain criteria that applied at registration of the agreement no longer apply. The new subsection 6 allows the court, if it is satisfied that the given criteria no longer apply, such as that the co-decision-maker has not effectively performed the functions of a co-decision-maker, to determine that the co-decision-maker may no longer act as a co-decision-maker for the appointer.

Amendment No. 39 proposes the deletion of section 23 and its substitution with amended text. The amendments to the text are mainly technical and clarify the intent of the policy underpinning this section. Section 23 deals with the reports that a co-decision-maker has to submit to the director. The amended text provides for the director to notify the appointer as well as the co-decision-maker if a report is incomplete or if it has not been submitted at all. A new subsection 5 clarifies that the court, on application to it by the director, may determine that the co-decision-maker who has not fulfilled his or her reporting obligations may no longer act as a co-decision-maker for the appointer concerned.

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