Dáil debates
Tuesday, 5 December 2023
Saincheisteanna Tráthúla - Topical Issue Debate
Assisted Decision-Making
11:30 pm
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Is the Minister of State here to deal with this Topical Issue matter as well?
Peter Burke (Longford-Westmeath, Fine Gael)
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I am.
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I thank the Minister of State for being here to take this question as well. I call Deputy Ó Laoghaire.
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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This is similar to the last debate. I do appreciate the Minister of State making time to be here.
I do not generally have an issue with Ministers of State taking Topical Issues, but is it is preferable when the Minister of State is in the relevant Department. Maybe it is a function of late night Topical Issues and the way the Dáil is structured at the minute, but I do not think-----
11:40 pm
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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To be clear, procedure-----
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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That is not a criticism.
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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No. To be clear about procedure, where a Minister from another Department is taking a Topical Issue, the Member tabling the Topical Issue is supposed to be informed by the Department that the Topical Issue will be taken by somebody else.
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Not on this occasion.
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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If the Deputy tabling the matter is not happy, then they can have it deferred. You should not be here not knowing that somebody from a different Department is going to take the question. It is not the Minister of State, Deputy Burke's fault.
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I have been informed in the past, but to my knowledge I was not informed on this occasion.
Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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That should not happen.
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I have no great gripe in regard to the Minister of State, Deputy Burke.
I bring this case up partially in the context of having been contacted by a few individuals looking for assistance regarding applications. I am very conscious of one in particular. By way of context, the Assisted Decision-Making (Capacity) Act was passed several years ago. It is a good piece of legislation. It is one we supported and it makes sense. It makes sense given that the decisions that are being taken are very weighty and significant in terms of the responsibility for decisions being taken from one person and given to another. Obviously, it is important that there are strong safeguards in place.
It was some time between the Act being passed to it taking effect. So far, the experience of the people who have sought to apply for a role under the Act have found the system to be quite onerous. That is right, up to a point. However, I would like to raise a couple of issues. There are two major forms, as well as a couple of other forms. Form 55A is not too bad and is relatively straightforward.
However, form 55B is 28 pages long and contains some fairly lengthy questions that require parsing a couple of times. It states:
In the case of an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015, explain the reason why the benefit to the Relevant Person sought to be achieved has failed to be achieved in any other appropriate, practicable and less intrusive manner (example: assisted decision-making; co-decision-making) taken prior to the making of this application
It goes on to refer to "The acquisition of property by the Relevant Person ... Please give details" and "The carrying on, on behalf of the Relevant Person, of any profession, trade or business which may lawfully be carried on by a person other than the Relevant Person (example: the management of any business which the Relevant Person owns or operates which he or she might not in future be able to undertake)".
For a form that was going to a public body, State agency or legal person, that is all fair enough. However, ordinary citizens are filling out these forms. The case I am dealing with concerns a man whose wife's dementia had escalated very rapidly to the point that she needed to be put into a nursing home. Decisions had to be taken to facilitate that. He was trying to deal with this stuff. Fair deal was coming down on him and asking him about the form. He started this process in May and it continued until September. He described being absolutely burned out.
It did not help that this happened only two days into the new system. He went to the Courts Service to look for assistance and was told the service had never seen the form before and did not know what was going on. Surely there should have been some communication with the Courts Service. He went to a lawyer, who had never seen the form. He went to gardaí who told him he needed to go to a lawyer. He did not qualify for free legal aid. Even if he did, the waiting list would be significant which would obviously have implications for the transition of his wife into a nursing home. In the meantime, she was in transitional care which they were pleased with. He is an ordinary member of the public trying to fill out a form.
I have no problem with the substance of what is trying to be achieved, but it seems to me that the forms need to be made a bit simpler and more straightforward. Support needs to be available. If people do not qualify for legal aid, that does not mean they are on the pig's back or in a better position to comprehend precisely the 60-odd question they are being asked. It is right that there are safeguards, but we need to support people working through this.
Peter Burke (Longford-Westmeath, Fine Gael)
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I thank the Deputy for raising this very important issue and for the opportunity to discuss the Assisted Decision-Making (Capacity) Act 2015. As the Deputy will be aware, the Act was commenced in April of this year, following the passage of amending legislation, by my colleague, the Minister, Deputy O’Gorman, and the constructive input of Deputies and Senators across the Houses.
First, let me acknowledge the scale and magnitude of change that this legislation has brought about in Irish society. In repealing the Lunacy Regulation (Ireland) Act 1871 the commencement of the Assisted Decision-Making (Capacity) Act 2015 has moved our legal framework out of the 1800s and into a space where our system is recognised as one of the more progressive approaches to capacity legislation in Europe.
The Act abolishes wardship and sets out a process for existing wards to transition to new, rights-based decision support arrangements. It has ushered in a new era where capacity will no longer be approached from the out-of-date status approach but will instead be assessed on a case-by-case time and context specific manner. The Act gives people experiencing diminished capacity the opportunity to participate more equally in society and have greater power to direct the course of their own lives in an independent and dignified manner. In doing so, it brings us into alignment with the United Nations Convention on the Rights of Persons with Disabilities.
The decision support service, DSS, is a critical component of assisted decision-making, and it holds a range of different powers to implement and support the operation of the Act. The DSS plays a crucial role in ensuring that the different tiers of support under the Act are available to those who need them and holds a supervisory and safeguarding role in relation to those arrangements. It is also vital that people who want to avail of decision supports have the right information and assistance available to them, and the DSS is crucial in this regard.
I can assure the Deputy that the DSS is doing all in its power to process decision support applications in a timely manner and, wherever possible, to improve service standards. The Act is newly commenced, having only come into force in April. It is worth acknowledging that, as with any process of significant change, it will take time to fully bed in. This is particularly the case given that the scale of reform here is nothing less than the overhaul of a legal system that was older than our own State.
Just over six months on from commencement, it is extremely encouraging that there is now evidence the Act is providing its intended supports to those who need them. The DSS continues to see rising levels of engagement week on week, with 1,498 active applications in its system, comprising a mix of applications for enduring powers of attorney, co-decision making agreements and decision-making assistance agreements.
The DSS reached the milestone of 100 fully registered arrangements earlier this month, and the number of applications submitted is continuing to grow. A total of 129 decision-making representation orders have been notified by the Circuit Courts to date, and these also continue to gather pace. A high level interdepartmental steering group is continuing to monitor the implementation of the Act and to respond to teething issues as they arise, but I am pleased to note for the House that the new legislation is already supporting a significant number of people to exercise control over their own affairs even in the context.
Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I note the point relating to the steering group. I am sure the Minister will not be able to commit to it on the floor of the House, but I might suggest that he request a meeting. The man to whom I have referred might have useful insights and if somebody from the steering group was in a position to speak to him, it might help. I have been contacted by a few others who are at the start of the process. We will see how they go. They were certainly very intimidated by the form when they first received it.
The system is new, but one of the worst elements of the man's experience was that when he went to the Courts Service nobody knew how to help him or exactly what this was. It seemed to the gentleman that the courts were not remotely prepared for this, to the extent that on the first hearing of his case that was brought before the judge, the judge put the case back because he was not familiar with the system. That is really frustrating. The steering group should consider some kind of support because not everyone will qualify for legal aid. To be honest, people should not be obliged to seek legal advice regarding forms for elements of public services. Perhaps that is appropriate, but in any event not everyone will qualify for legal aid.
Greater assistance could be made available to people applying. Some people would not be in a position to go through this process without it being an urgent issue, given the way things develop might not be so quick, but it is not hard to imagine circumstances where things can change rapidly and where families and their loved ones need to respond quickly, make adjustments and apply for measures such as this. That should not take months. It should be relatively straightforward but, obviously, for that to happen, the application needs to be straightforward and there need to be supports.
I ask the Minister of State to take that request back to the Department and relay the feedback I have given. This is an important service and an important reform of an antiquated system, which I am glad to see, but some of those teething problems seem to be real.
11:50 pm
Peter Burke (Longford-Westmeath, Fine Gael)
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It is very important that we articulate lived experiences, especially when going through a new system, so if the Deputy wants to give me the details of the person in question, I will absolutely bring them to the attention of the Minister, Deputy O'Gorman. It is important also that a steering group would see challenges. We know, as constituency TDs holding clinics, how circumstances can change rapidly in the lives of people going through difficult times, and it is important that the system support that in a user-friendly manner. If the Deputy wants to email me details of the case, I will happily raise it with the Minister and point out that it was raised as a Topical Issue.