Office of Director
The legislation establishes the office of the Director of the Decision Support Services. The Director is appointed by the Mental Health Commission. He is to be appointed on the recommendation of the Public Appointment Service after a competition under the Public Service Management (Recruiting and Appointments) Act. He must have the appropriate qualifications, experience, training and expertise necessary to perform his functions.
The purpose of the Director is to
- promote awareness of the legislation,
- promote public confidence in the process of dealing with matters affecting persons requiring assistance in their capacity,
- provide information to relevant persons on options under the Act,
- provide information relating to decision-making assistants, co-decision-makers, decision-making representatives, designated health care representatives and attorneys;
- supervise compliance by them in their performance of their functions under the Act;
- provide information and guidance to organisations and bodies in the State;
- provide information in relation to the management of property and financial affairs of relevant persons through decision-making assistance, co-decision-makers, decision-making representatives and attorneys;
- identify and make the recommendations for changes in practices in organisations and bodies which may prevent a person exercising his or her capacity under the Act;
- establish a website and provide, disseminate information, make recommendations to the Minister.
The Director with the consent of the Minister may prescribe fees in relation to functions under the Act.
The Director has powers to investigate matters on his own initiative or on a complaint in relation to any of the above categories of persons. He may summon witnesses to attend and examine them on oath. He may require them to produce documents in their power or under their control, require persons to provide written information as is considered necessary for the purpose of its functions.
The Director may investigate a complaint even though the person making it may be entitled to bring proceedings in respect of the matter concerned. He may seek resolution of complaints in such a manner including by informal means as he considers appropriate and reasonable.
The Director is to draw up procedures in relation to making an investigation of complaints as he considers appropriate and publish them.An investigation shall be conducted otherwise than in public. Obstruction of the Director in the performance of his functions is an offence subject on summary conviction to a class A fine.
Provision is made in the legislation for the staff of the Director’s office. They are to be members of the staff of the Mental Health Commission. The Director may delegate his functions to the particular members of the staff assigned. The Mental Health Commission shall appoint such persons to be members of the staff of the Director, as may be approved by the Minister for Health with the consent of the Minister for Public Expenditure and Reform.
The Director may appoint special visitors or general visitors. A special visitor is a registered medical practitioner who has particular knowledge, expertise and experience in respect of capacity of persons or a person who is not a registered medical practitioner but who has equivalent knowledge, experience and expertise in respect of capacity.
A general visitor is a person who in the opinion of the Director, is a person who possesses relevant qualifications or has other relevant experience, to assist the Director in performing his supervisory functions. The appointment of a visitor shall be subject to such terms and conditions including remuneration as approved by the Minister with the consent of the Minister for Public Expenditure.
The Director may direct general visitors or special visitors to visit decision making assistants, co-decision-makers, decision-making representatives, designated healthcare representatives and attorneys for the person concerned. The Director may direct a special or general visitor to examine and take copies of health, personal welfare and financial records in relation to a person and interview persons in private or public. A general visitor may not examine and take copies of health records unless he is a registered medical practitioner.
Prior to taking an action directed above, the person shall seek the consent of the relevant person unless the Director dispenses with the requirement. Where there has been a declaration in respect of the person 31(b) or an enduring power has been registered.
A special or general visitor shall not attempt to obtain information not reasonably required for the purposes of his functions and use such information for a purpose that is not in accordance with the legislation. A special or general visitor shall take reasonable steps to ensure that any information obtained is kept secure from unauthorised access, use or disclosure and shall safely dispose of it when he believes it is no longer required.
The Director shall, on an annual basis, carry out checks to ascertain if special visitors or general visitors are complying with their above obligations.
The Director may, appoint a person to be a court friend for a relevant person. A court friend assists the relevant person in relation to an application under Part 5 (appointment) in respect of which the person is the subject of the application. The court, on hearing of the application, may hear submissions from the court friend on behalf of the relevant person.
The court friend for the purpose of assisting the person concerned, may at any reasonable time, examine and take copies of any health, personal welfare or financial records and interview the relevant person in private or otherwise than in public. This shall not entitle the court friend to take copies of any health record unless the court friend is a registered medical practitioner.
Prior to taking the above action, the court friend shall seek the consent of the person to the taking of the action, unless the Director dispenses with the requirement where the person has been declared to lack capacity or enduring power of attorney has been registered.
A court friend shall not attempt to obtain information that is not reasonably required for his purposes or use such information for a purpose other than that provided for. The court friend shall take reasonable steps to ensure the information obtained is kept secure from unauthorised access, use or disclosure, and is safely disposed of when he or she believes it is no longer required.
The Director shall, on an annual basis, carry out checks to ascertain if court friends are complying with their obligations above. The court friend shall assist and attend with the relevant person in court or, if the person is not attending the hearing, promote the interests and preferences of the relevant person in court.
A court friend for a person may attend and represent the person at any meeting, consultation or discussion, in connection with an application affecting his capacity to which the person is subject, at which the interests, will or preferences of the person concerned are being considered, whether or not the person is attending the meeting, consultation or discussion, as the case may be.
A court friend for a party may be appointed for such term and subject to such conditions, and may be paid such remuneration and allowances, as the Minister with the consent of the Minister for Public Expenditure, may determine.
The Director shall establish panels of
suitable persons willing to act as decision-making representatives for persons where no other person is available;
special visitors, general visitors, and court friends.
The Director shall submit to the Mental Health Commission annually, a report on his activities for the previous year. The Mental Health Commission shall cause a copy to be forwarded to the Minister for Health.
Within two years of the commencement of this part of the legislation, the Director was to submit to the Mental Health Commission, a report on the effectiveness of the office, on the adequacy of functions assigned to the Director, and concerning such recommendations that the Director thinks would improve his effectiveness and the adequacy of the functions assigned. The Mental Health Commission is to cause a copy of the report to be sent to the Minister.
At the end of every five year period, the Director shall submit to the Mental Health Commission and the Minister for Health, a report reviewing the general performance of the objects and functions of the Director in the previous five years.
The Director may make any other reports that he considers appropriate for drawing to the attention of the Commission or the Minister, matters that have come to his notice and that, in his opinion, should because of their gravity or exceptional circumstances, be the subject of a special report to the Commission or the Minister.
Codes of Practice
The Director may prepare and publish codes of practice. He may request another body to prepare a code of practice, and approve such code. The codes may be for any one or more of the following purposes:
- guidance of persons, including healthcare professionals, assessing whether a person lacks capacity in relation to any matter;
- guidance of decision-making assistants;
- guidance of co-decision-makers;
- guidance of decision-making representatives;
- guidance of special visitors, general visitors and court friends;
- guidance of attorneys;
- guidance of healthcare professionals in relation to urgent treatment;
- guidance to persons acting as advocates on behalf of persons without capacity;
- guidance of others including healthcare, social care, legal and financial professionals.
When the Director proposes to prepare codes, he shall consult bodies as he considers appropriate which may include
- the HSE;
- National Disability Authority;
- representative bodies of healthcare, social care, legal and professional sectors;
- Citizens Information Board;
- representatives of healthcare, social care, legal and financial professionals.
Codes of practice shall be made available in draft form for comments before being approved. A person shall be invited to make representations which shall be considered. A code which has been approved, published or approved, notice shall be published in Iris Oifigiúil.
The Director shall keep posted on the Internet website, copies of each code published and in force from time to time. There are provisions for amendment, revocation and modification of codes.
Where it appears to the court, tribunal or body concerned conducting proceedings that the provision of any code published or approved or failure to comply with the code is relevant to the question in the proceedings, the question or failure as the case may be, may be taken into account in deciding the matter.