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

Amendments Nos. 14, 43, 63 and 240 to 243, inclusive, are intended to insert provisions to ensure that information is sourced, used and stored correctly and in compliance with data protection obligations. The proposed amendment No. 14 is intended to bring the Bill into compliance with the Data Protection Act by including a definition of "relevant information". This definition will enable interveners, such as decision-making assistants, for instance, to know the categories of information that they can and cannot access. Including the definition should also make clearer to an institution which categories of information can and cannot be given to an intervener.

Amendment No. 43 proposes to delete subsections (3) and (4) of section 16 as the obligations arising for co-decision-makers are now set out in section 8. The obligations now relate to all interveners rather than specifically to decision-making assistants. Similarly, amendment No. 63 proposes to delete subsections (2) and (3) of section 11 as the obligations arising for decision-making assistants are now set out in section 8.

Amendments Nos. 240 and 241 propose to introduce additional provisions into section 82 concerning the obligations that will apply to general visitors and special visitors if they seek records relating to a person with capacity difficulties as part of their role to support the director. They will need to have access to such records mainly when they are examining a complaint received by the director relating to a person with capacity difficulties. The proposed amendments retain the provision allowing them to examine and take copies of records.It specifies that these can be health, personal welfare and financial records pertaining to the person with capacity difficulties. It also retains the provision for the general visitor or special visitor to interview the person.

The amendments propose a series of additional obligations to bring the provision into line with data protection obligations. It requires the general visitor or special visitor to seek the consent of the person with capacity difficulties prior to seeking the records in question. It proposes that the consent requirement can be dispensed with where the person has a decision-making representative or an attorney under an enduring power of attorney. This is for the reason that if the special visitor or general visitor is examining a complaint, it may often be against a decision-making representative or an attorney. It would not be appropriate, therefore, for the person against whom a complaint is potentially being made to have the possibility to refuse access by the special visitor or general visitor to the records in question.

The amendments would impose the following restrictions in terms of the records that can be sought. These are limited to the records needed for the purposes of carrying out the task required by the director. They would also require the special visitor or general visitor to keep the records secure from unauthorised access, use and disclosure. They would require the special visitor or general visitor to dispose of the records when no longer needed. To ensure these restrictions are complied with, they would require the director to carry out an annual check to ensure special visitors and general visitors are complying with these obligations.

Amendments Nos. 242 and 243 propose the same provisions and obligations on court friends as are specified in respect of general visitors or special visitors. They require the court friend to seek the consent of the person with capacity difficulties prior to seeking the records in question. They also propose that the consent requirement can be dispensed with where the person has a decision-making representative or an attorney under an enduring power of attorney. This is for the reason that if the court friend is supporting a person with capacity difficulties in a court hearing, the interests of the incapacitated person may be at odds with those of a decision-making representative or an attorney. It would not be appropriate to give them the power to refuse access to such records.