Lawyers should be ‘more encouraging’ of applications under new decision-support law, judge says

A judge has urged lawyers and the Legal Aid Board to be “more encouraging” of applications brought under a radical new law providing for decision-making supports for people with capacity issues.

Four in 10 of 451 applications brought under the Assisted Decision-Making Capacity Act since it was fully commenced last April are by lay litigants, most of whom said they could not get a solicitor to deal with it or were unable to afford a lawyer, Judge John O’Connor said.

Some lawyers “run away” from representing applicants – many of whom are family members of the relevant person (RP) – “and some just charge too much”, said the judge, who is the principal judge dealing with implementation of the Act in the Circuit Court.

He was addressing a seminar in Dublin on Wednesday night on the operation to date of the Act, enacted to comply with the United Nations Convention on the Rights of People with Disabilities. It requires focus on the RP’s “will and preferences” rather than their “best interests”.

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Organised by the HSE national office for human rights and equality policy, the seminar’s large attendance included judges, lawyers, healthcare professionals, people with disabilities and advocates for their rights.

[ Judge appoints independent decision-makers instead of siblings for interests of woman with dementia ]

Áine Flynn, director of the Decision Support Service (DSS), which was established under the Act to assist people experiencing difficulties making decisions, said it has received some 17,000 queries since the Act came into effect. The DSS is not involved in the court process, but it registers and supervises decision-support arrangements and orders.

Judge O’Connor said applications under the Act are steadily increasing, and he expects use of decision supports to grow enormously for reasons including our ageing population. The Act requires the discharge of hundreds of wards of court into the decision-support system, but that will take time, he said.

Of 148 applications before him in Dublin Circuit Court, he granted orders appointing decision-making representatives (DMRs) in half. In some cases, he was happy to have a family member involved in decision-making over the personal care of the RP, but not their finances, he said.

Of the remaining 74 applications before him, some were adjourned for reasons including inadequate paperwork, and some were withdrawn for reasons including death of the RP or the parties’ deciding to instead pursue a co-decision-making arrangement.

Safeguarding issues arose in a minority of cases, he said.

Many applications, he outlined, seek access to the Fair Deal and Nursing Home Support Scheme (NHSS), but applicants are experiencing difficulties completing complex forms for such access. Delay in completing applications can lead to considerable nursing home debt, and judges had taken steps to assist applicants with the forms.

[ Court discharges four people from wardship so decisions can be made under new scheme ]

Asked what is working well in relation to the Act’s operation, the judge said the HSE “have got it, they understand what is involved” and are “quite collaborative”. Social workers and advocates are very helpful in providing context for applications, he added.

In relation to what is not working well, he said lawyers and the Legal Aid Board “need to improve” and be “more proactive and encouraging” of those making applications.

RPs are entitled to non means-tested legal aid, but applicants for DMR orders are not automatically entitled to legal aid, he noted.

Just 38 per cent of RPs had legal representatives in the earlier months of the Act’s operation, but that rose to 55 per cent in relation to the last 20 DMR orders granted.

He was disappointed that just 7 per cent of RPs have participated, either physically or remotely, in the court hearings affecting them.

While accepting a lack of capacity was an issue in perhaps 90 per cent of cases, very effort must be made to ensure the voice of RPs is heard by some means because the proceedings concern their lives, rights and dignity, he said. In 78 per cent of applications, the RP’s voice was heard via an advocacy group and 22 per cent by other means.

[ ‘Archaic’ wards of court system to be abolished and replaced by decision support for people with disabilities ]

The judge said he was “taken aback” by the number of assessments of the functioning of RPs which had a diagnostic focus rather than addressing the issue of capacity – “the whole thrust of the Act”. Doctors must be genuinely independent and their reports should not, for example, reflect priorities of a hospital about moving people out of hospital beds, he said.

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