670. Deputy Aidan Farrelly asked the Minister for Children, Disability and Equality if her attention is drawn to the fact that the operation of the Assisted Decision-Making (Capacity) Act 2015 is, in practice, creating significant barriers for adults with lifelong intellectual disabilities and their families in accessing basic services such as healthcare, dental treatment, and banking. [51592/26]

671. Deputy Aidan Farrelly asked the Minister for Children, Disability and Equality if she accepts that requiring formal decision-making representative orders in circumstances where capacity is clearly and permanently limited is placing an undue administrative and financial burden on ageing family carers, many of whom are already under severe financial pressure. [51593/26]

672. Deputy Aidan Farrelly asked the Minister for Children, Disability and Equality the assessment that has been made of the impact of DMR application costs, legal complexity, and court-based processes for ordinary families seeking to continue long established caring arrangements for adult children with significant intellectual disabilities. [51594/26]

I propose to take Questions Nos. 670, 671 and 672 together.

The Assisted Decision-Making (Capacity) Act 2015, which commenced in April 2023, represents a major change in the way capacity is viewed in the State. It brought about an end to wardship for adults, by repealing the Lunacy Regulation (Ireland) Act 1871 and replacing the wards of court system with the new rights-based framework for appointing tiered decision support arrangements that is now in effect.

Furthermore, it represents a crucial shift away from a ‘best interests’ approach to a rights-based approach to capacity, privileging a person’s will and preferences. The Act places individuals at the centre of decisions that affect them and provides for the necessary supports to enable persons with capacity difficulties to retain as much control as is possible over their own affairs and the decisions which affect them. As a reform it was long called-for by disability groups, safeguarding groups, civil society, wards of court and their committees, and was welcomed as a significant step towards promoting choice, autonomy and dignity.

The Act realises Ireland’s ambitions to meet certain requirements under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and its implementation is underpinned by a set of guiding principles arising from those obligations. In that regard, the Act is based on the long-established principle that every adult is presumed to have capacity unless it is shown otherwise in relation to a particular decision at a particular time. Capacity is therefore decision-specific and time-specific rather than determined by a person's diagnosis or disability. The guiding principles also require that every practicable effort be made to support a person to make their own decisions before any formal decision-making support arrangement is considered. This includes drawing on the adult’s own network of support including family.

The Act does not make it mandatory to assess capacity where it was not necessary to assess capacity before. It is not the intention of the 2015 Act to require families to apply to court to become decision-making representatives in order to navigate day to day decision-making, and the operation of the Act over the past three has demonstrated that it is operating as intended in this regard.

Treatment has always been based on consent, and the 2015 Act should not impede access to necessary treatment. The HSE National Consent Policy provides detailed guidance on how healthcare providers should proceed when a person’s capacity is in question. The Decision Support Service (DSS) has also published a Code of Practice for Healthcare Professionals (www.decisionsupportservice.ie/resources/codes-practice/code-practice-healthcare-professionals) which provides guidance to healthcare professionals in carrying out their functions and duties when interacting with a relevant person in the context of the Act.

In relation to banking, a person may not be denied banking services on the basis of a disability. Furthermore, a person cannot be assessed as lacking capacity to open a bank account without first being supported as far as possible to make decisions in that regard. A bank’s vulnerable customer unit should have good knowledge of the 2015 Act and should be able to assist where issues arise. As part of its statutory functions the DSS engages with the banking sector to promote a good understanding of the 2015 Act and has published a Code of Practice for Financial Service Providers (www.decisionsupportservice.ie/sites/default/files/2023-04/11.%20COP_for_financial_service_providers.pdf).

Where, as a matter of last resort, it is necessary for a formal decision support arrangement to be put in place, this must be the least restrictive on a person’s rights and freedoms, and will be determined by the adult’s capacity and tailored to their decision support needs. Such arrangements, including co-decision-making agreements and decision-making representation orders, may cover decisions regarding personal welfare and/or property and affairs, and are monitored and overseen by the DSS to ensure that they are operating as intended. It is important to note that parents and carers are not excluded from becoming a decision supporter for an adult under any of these arrangements. It is frequently the case that decision supporters who are appointed are close family members of the adult.

In respect of the cost of the DMR court-based application process, the Department does not determine the costs of legal or medical fees. The Legal Aid Board supports family members and others in making applications to the Court, subject to financial eligibility. They also provide independent legal representation to the relevant person who does not have to be financially eligible for legal services.

The 2015 Act requires that a review of the operation and effectiveness of the Act must take place no later than five years after its commencement. That review will be extensive, will consider all aspects of the Act, and, most importantly, will be informed by those with lived experiences of the provisions of the Act and by wider stakeholders.

I look forward to continued engagement with all stakeholders to ensure that those who face diminished decision-making capacity are enabled to retain as much autonomy over their lives as possible, and have their wishes documented and respected.