Thursday, 28 November 2019
Department of Justice and Equality
Assisted Decision Making
129. To ask the Tánaiste and Minister for Justice and Equality the funding arrangements he will put in place to address the concerns of the Supreme Court as expressed in a case (details supplied); and if he will make a statement on the matter. [49666/19]
130. To ask the Tánaiste and Minister for Justice and Equality when he will fully commence all parts of the Assisted Decision-Making (Capacity) Act 2015 following the comments by the Supreme Court in a case on 17 October 2019 regarding the wardship process and the lack of clarity relating to the legal test under the Lunacy Regulation (Ireland) Act 1871 for deciding if a person lacks decision making capacity; and if he will make a statement on the matter. [49667/19]
I propose to take Questions Nos. 129 and 130 together.
My Department is looking at the Supreme Court decision and will keep the matter under review.
As the Deputy will be aware, wardship proceedings fall within the scope of the Civil Legal Aid Act 1995. Legal aid is available to persons who satisfy the financial eligibility criteria laid down in that Act and in the Civil Legal Aid Regulations 1996 to 2017. Principally, the person must have disposable income of less than €18,000 per annum and disposable capital assets of less than €100,000 (excluding the home in which they live). The person’s case must also satisfy the merits criteria laid down under that Act. These criteria include if the applicant is reasonably likely to be successful in the proceedings and if having regard to all the circumstances of the case, including the cost to the Board as against the benefit to the applicant, it is reasonable to grant legal aid.
The Legal Aid Board is bound to apply the financial eligibility and merits criteria to all cases. While I as Minister for Justice, with the consent of the Minister for Public Expenditure and Reform, can disapply the financial eligibility criteria by means of an amendment to the Civil Legal Aid Regulations 1996, I cannot disapply the merits criteria in such a manner under the Act.
The Assisted Decision Making (Capacity) Act 2015 provides particular provisions in relation to legal aid for what are termed “relevant persons” (RPs) under the Act. The provisions would effectively remove the means criteria for RPs and apply what is known as the “reduced merits” criteria (the same criteria applicable in cases involving the welfare of a child, i.e. that the prospects of success and reasonableness tests are removed). It also provides for a mechanism for recovering costs in cases where legal aid is granted to an RP who would have been financially ineligible for legal services. These provisions are contingent on the commencement of Part 5 of the 2015 Act and are not worded in such a way that they could be applied to the provisions of the Lunacy Regulation (Ireland) Act1871.
When the court considers it appropriate it can appoint a Guardian ad Litem to represent the voice of the Ward in Court. If funds are not available to cover the Ward's costs associated with this appointment, they are borne by the Courts Service, Health Service Executive or the Child and Family Agency. If the Health Service Executive or the Child and Family Agency seeks the appointment of a Guardian ad Litem, they bear the costs of the appointment.
In relation to fully commencing the Assisted Decision-Making (Capacity) Act 2015, as the Deputy will be aware, the Act was signed into law on 30 December 2015. The Act provides for the establishment of new administrative processes and support measures, including the setting up of the Decision Support Service (DSS) within the Mental Health Commission (a body under the Department of Health).
A high-level Steering Group comprising senior officials from my Department, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the DSS, is overseeing the establishment and commissioning of the Decision Support Service and this work is ongoing.
A number of provisions of the 2015 Act were commenced in October 2016 in order to progress the setting up of the DSS. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016) commenced provisions of the Act to enable the recruitment of the Director of the DSS. Ms Áine Flynn was appointed Director of the DSS 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 commenced provisions provide for the establishment by the Minister for Health of a multi-disciplinary group to make recommendations to the Director of the DSS 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 DSS is ready to roll out the new decision-making support options.
Work has been ongoing in my Department on the drafting of necessary amendments to the Assisted Decision-Making (Capacity) Act 2015, taking account of issues raised by the Mental Health Commission, the codes of practice working groups and submissions received from other bodies. The intention was to bring forward these amendments by way of the Disability (Miscellaneous Provisions) Bill 2016. However, when Dáil Committee Stage took place on the Bill on 30 January 2019, a number of amendments were agreed which had previously been ruled out of order by the Ceann Comhairle, thus giving rise to a procedural matter. Work is ongoing to resolve this issue.