Co-Decision Issues

Table of Contents

Review

The Director is to conduct a review of each co-decision-making agreement, within three months before or after its first anniversary. Thereafter, it is to be reviewed every three years.

Reasonable enquiries are to be made including consultation with the parties concerned and other relevant parties. The purpose is to determine that the relevant criteria continue to apply. Statements are to be required from the relevant medical practitioner and healthcare professional as the case may be.

If, following review, the director is of the opinion that one or more of the applicable criteria don’t apply, notice is to be given to the parties. If following consideration of their responses, he remains of the same view that the criteria are not satisfied, he shall apply to court for determination of the matter.

Reporting Obligations

A co-decision maker shall prepare and submit to the Director, an annual report in relation to the performance of his functions during the relevant period. It shall be approved by the appointer and be in a prescribed form. It shall include details of all transactions relating to the appointer’s finance within the scope of the agreement, with details of costs and expenses claimed during the period.

Where a report is not submitted, the director shall notify the parties concerned of the failure and give such time as may be specified to comply. In some circumstances an incomplete report supplemented by enquiries and responses may suffice. Further directions may be given.

A decision may be made by the Director that the co-decision-maker shall no longer act. The appointer or co-decision-maker may appeal to the circuit court within 21 days.

The court may

affirm the determination of the Director,
declare that the co-decision-maker shall continue to act as such for the appointer concerned and require the Director to update the Register accordingly, or
make such other declaration or order as it considers appropriate. His

Variations

The terms of a co-decision-making agreement may be varied by agreement between the appointer and decision maker. Similar formalities apply to those applicable, on the initial making of the agreement. An application is to be made to register the varied co-decision making agreement.

Notice is to be given in the same way to third parties. It is to be accompanied by a statement as to why the variation was considered necessary and a statement of a registered medical practitioner or another healthcare professional in a prescribed form in relation to the relevant matters.

The above provisions which apply to the making of the co-decision agreement apply generally to the making of a variation in the co-decision making agreement.

Revocation

A co-decision-making agreement whether or not registered may be revoked in part or in whole. A revocation is to be in writing in the prescribed form. It is to be signed and witnessed by two witnesses. Where the agreement has been registered, the revocation is to be notified to the Director.

Where a revocation or revocation in part is made after the co-decision-making agreement concerned has been registered, the person making the revocation shall notify the Director of the revocation or revocation in part, as the case may be, and the notification, which shall be in such form as shall be specified and shall be accompanied by the following:

a statement in writing by the person making the revocation outlining his or her reasons for the revocation;
if the appointer is the person making the revocation, a statement by a registered medical practitioner or a statement by such other healthcare professional as shall be prescribed by regulations that in his or her opinion, the appointer has capacity to revoke the co-decision-making agreement;
details of the notice given
information on any change in the details provided in the application to register the co-decision-making agreement;
the appropriate fee, as prescribed by regulations

The person making the revocation or revocation in part of a registered co-decision-making agreement shall, at the same time as notifying the Director give notice of the revocation or revocation in part, in such form as shall be specified , to the persons specified as requiring notice this the first instance

Upon receipt of a notification the Director shall—

where the revocation concerns the whole of the co-decision-making agreement concerned, remove the co-decision-making agreement to which the revocation relates from the Register, and
the revocation is a revocation in part, identify on the Register the extent of the revocation.

Aa “revocation in part” means a revocation (whether by the co-decision-maker or the appointer or both), whereby the co-decision-maker continues to act as co-decision-maker for the appointer in respect of one or more relevant decisions which are the subject of the co-decision-making agreement.

Complaints

Any person may make a complaint to the Director concerning the following matters:

the co-decision maker is acting outside of the scope of his powers;
the co-decision maker is unsuitable;
the agreement is not in accordance with the will and preferences of the appointer;
the appointer lacks capacity to enter the agreement;
fraud, coercion or undue influence was used to enter the agreement;
the appointer has capacity to act without assistance;
the appointer no longer has the capacity to act with assistance.

The Director is to investigate the matters, the subject of the complaint and consider whether it is well founded within three months. This may be extended to 6 months but notice must be given to the complainant.

Determination of Complaints

If he considers the complaint as well founded but that clarification would be appropriate to a resolution or an an alternative resolution procedure is appropriate the Director may proceed to do so within three months. Information may be required.

If the Director is not satisfied, following the receipt of the information or confirmation that the clarification or resolution has satisfactorily resolved the complaint, the Director may make an application to the court in accordance or may take such other steps as he or she considers appropriate in order to resolve the complaint,

The court may make a determination in relation to a matter and may, if it considers it appropriate, determine that a co-decision-maker shall no longer act as such in relation to the appointer concerned, and that the Register shall be amended accordingly. The Director shall, investigate a complaint unless in his or her opinion there has been undue delay in making the complaint.

A decision by the Director not to investigate a complaint—

shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and
may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.

Court Criteria

Where, under this Part, the court is determining whether a co-decision-maker should continue to act as co-decision-maker for an appointer, it shall have regard to all of the circumstances of the case, including in particular—

the capacity of the appointer,
the appointer’s willingness to continue to participate in the co-decision-making agreement concerned,
the suitability of the co-decision-maker,
the performance by the co-decision-maker of his or her functions, and
the views of the Director.

Regulations

The Minister may make regulations in relation to

the form of co-decision-making agreement,
class of healthcare professionals for the purpose of various functions
form of applications,
forms of notice,
form of objection,
form of reports to be submitted to the director,
form of revocation,
form of references as to personal character of co-decision maker,
persons who may inspect the register,
fees.

The Capacity of Co-Decision Maker

An application for registration of a co-decision making agreement is to be accompanied by references as to the personal character of the decision-maker.

A court in determining whether a co-decision maker shall continue to act as such will have regard to all the circumstances including

the capacity of the appointer;
the appointers willingness to participate in the co-decision-making agreement;
the suitability of the court decision-maker;
the performance of the court decision-maker in its functions;
the views of the director.

Decision Maker’s Default

Person who use fraud, coercion or undue influence to force another to make or revoke or vary a co-decision making agreement is guilty of an offence. It is subject on summary conviction to a Class A fine or imprisonment up to 12 months or both. It is subject on conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term of five years or both.

It is an offence in an application for registration of a co-decision making agreement or in connection with it, to make a statement which a person knows to be false in a material respect. Similar penalties apply.

Coercion or undue influence in the above context includes any case where a person’s access to or continued stay in a designated center or mental health facility is contingent either in whole or in part on the person having to or being led to believe that she has to make or vary or revoke a co-decision making agreement.