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

Amendments Nos. 149 to 162, inclusive, propose a series of amendments to align the provisions on decision-making representatives with those agreed for co-decision-makers. The intention is that the more robust safeguards agreed for co-decision-makers would be applied to decision-making representation.

Amendment No. 149 seeks to make clear that a person must be 18 or over to be appointed as a decision-making representative in view of the level of responsibility potentially arising from this role. Amendment No. 150 seeks to clarify the boundaries that will apply between the functions of a decision-making representative and the terms of an advance healthcare directive or an enduring power of attorney. The court will be required to ensure the order appointing a decision-making representative is consistent with the terms of an advance healthcare directive and with the powers of a designated healthcare representative. The order will also have to be consistent with the terms of an enduring power of attorney and with the functions of an attorney. The reason they take precedence is because an advance healthcare directive and an enduring power of attorney are direct expressions of the will and preferences of the person.

Amendment No. 151 proposes to align the categories of person who will not be eligible to be decision-making representatives with those agreed for co-decision-makers. The provisions are largely similar to those in place in respect of decision-making representatives.

Amendment No. 152 inserts a new section 37. The section proposes to align the categories of person disqualified from being decision-making representatives with those agreed for co-decision-makers. A spouse or civil partner will be disqualified if he or she separates from the relevant person and if the marriage or civil partnership is dissolved. Similarly, a cohabitant will be disqualified if he or she separates from the person. These provisions are intended to protect the person against a former partner seeking to use the person’s incapacity to gain control over the person’s property and affairs. They are largely similar to those set out for decision-making representatives. One new provision is that they provide for a situation in which a civil partnership is annulled or dissolved in a state other than Ireland.

Amendment No. 153 proposes two new subsections which seek to respond to the concerns of Senators that the duty to ascertain the relevant person’s will and preferences be given priority. The first duty will be to ascertain, in so far as is possible, the person’s will and preferences. The second amendment proposes to move the provisions of subsection (4) to become subsection (2) of this section. The provisions are as agreed. The intention is to highlight the duty on the decision-making representative to act as the relevant person’s agent and in service to that person.

Amendment No. 154 moves the provisions, currently in section 38(5) into a new section. This is in the interests of clarity as the previous section 38 covered too many different issues. No change is envisaged to the provisions as agreed.

Amendment No. 155 proposes to move the provision currently in section 36(8) into section 37 in the interests of structuring the Part more clearly. No change is envisaged to the provisions as agreed.

Amendment No. 158 proposes to modify the provisions of section 38(7) to specify that the scope available to a decision-making representative to make a decision on the carrying out or refusing of life-sustaining treatment is subject to the terms of an advance healthcare directive. Similarly, the amendment proposes that the decisions of a designated healthcare representative will take precedence over those of a decision-making representative on these matters. This is because the advance healthcare directive is the direct expression of the will and preferences of the relevant person on such matters. Equally, the designated healthcare representative will have been appointed specifically by the person to take these decisions if and when they arise.

Amendments Nos. 159 and 160 propose a new section 39 which set out the provisions that would apply in terms of the register of decision-making representatives. The provisions are in line with those agreed for co-decision-makers. It is proposed that the Minister would specify by regulation the bodies and classes of person entitled to access the register. In the interests of the person’s privacy, it is not appropriate that a register would be accessible to the public. However, it is intended that anyone needing to know if a person has a decision-making representative will be able to apply to the director for that information.

Amendment No. 161 proposes a new section 40 setting out the provisions relating to the reporting obligations to be imposed on the decision-making representative. These are in line with the provisions agreed for co-decision-makers. They retain the provisions in subsections (6) and (7) of section 36 but add a number of key protections. They set out the procedures that will apply if a decision-making representative fails to submit a report or submits an incomplete report. The director will contact the decision-making representative on this issue. If the decision-making representative continues to fail to submit a complete report, the director will have the power to apply to the court for a determination on whether the decision-making representative should continue in the role. It is important to add these provisions as a safeguard for the relevant person. Reporting is intended as the primary means by which the director will supervise the decision-making representative. The director will be unable to perform this supervisory function adequately if he or she does not have the possibility to engage with the decision-making representative on the reports or to seek the court’s determination where the representative fails to comply with the obligations.

Amendment No. 162 proposes a new section 41 which sets out the complaints mechanism that will apply where complaints are made against decision-making representatives. A person will be able to make a complaint where the representative is acting or proposing to act beyond the scope of the functions specified in the court order.A person will be able to make a complaint where the representative is acting or proposing to act beyond the scope of the functions specified in the court order. A complaint will also be possible where the representative is not suitable such as where he or she is in conflict with the relevant person or not able to perform the role. It is proposed that the director will be able to investigate the complaint to see if it is well founded. If it is, he or she will be able to apply to the court for a determination. He or she will also be able to launch investigations on his or her own initiative. If a complaint is not well founded, the director will notify the complainant who will be able to appeal the decision to the court.