Thursday, 9 May 2019
Department of Justice and Equality
Commencement of Legislation
75. To ask the Tánaiste and Minister for Justice and Equality when all sections of the Assisted Decision-Making (Capacity) Act 2015 will be commenced; the reason for the delay of commencement; and if he will make a statement on the matter. [20224/19]
I propose to take Questions Nos. 72 and 75 together.
The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. The Act was signed into law on 30 December 2015 but has not yet been fully commenced. The Act provides for the establishment of new administrative processes and support measures, including the setting up of the Decision Support Service within the Mental Health Commission (a body under the Department of Health).
The Decision Support Service is working towards being operational and ready for the commencement of the main provisions of the 2015 Act in 2020. The Deputy will appreciate that a lead in timeframe is needed to ensure that the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations will be in place so that the Decision Support Service will have the capacity to be up and running effectively. There are many complex strands to this preparatory work, including the involvement of multiple organisations.
A high-level Steering Group comprised of senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the Decision Support Service, is overseeing the establishment and commissioning of the Decision Support Service and this work is ongoing. The 2019 Revised Estimates Volume provides for an allocation of €3.5 million in the Justice and Equality Vote for the establishment of the Decision Support Service.
A number of provisions of the 2015 Act were commenced in October 2016 in order to progress the setting up of the Decision Support Service. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016), brought Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the Act, other than sections 3, 4 and 7 in Part 1 and sections 96 and 102 and Chapter 3 in Part 9, into operation on 17 October 2016. These provisions were brought into operation in order to enable the recruitment of the Director of the Decision Support Service. Ms Áine Flynn was appointed Director of the Decision Support Service on 2 October 2017.
The commencement of Part 8 of the Act, which provides a legislative framework for advance healthcare directives, is a matter for the Minister for Health. The Minister for Health, under the Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016 (S.I. No. 517 of 2016), brought some provisions of Part 8 of the Act into operation on 17 October 2016. The provisions commenced in Part 8 were the definition of “Minister” in section 82; the definitions of “code of practice” and “working group” in section 91(1); and section 91(2). The commenced provisions provide for the establishment by the Minister for Health of a multi-disciplinary group to make recommendations to the Director of the Decision Support Service in relation to codes of practice on advance healthcare directives. In anticipation of the completion of that process, the Minister for Health commenced the remainder of section 91 on 17 December 2018 (S.I. No. 527 of 2018).
The key preparations are being put in place under the oversight of the Steering Group to allow for further commencement orders for the provisions of the 2015 Act to be made when the Decision Support Service is ready to roll out the new decision-making support options.