Assisted Decision-Making (Capacity) Act 2015

103.

Codes of practice

103. (1) In this section—

“body concerned”, in relation to a person concerned, means the body responsible for hearing complaints about failures to maintain professional standards in respect of the profession practised by the person concerned;

“code of practice” includes part of a code of practice and, in relation to a code of practice published or approved of under subsection (2), means such code as may be in force from time to time under this section;

“person concerned”, in relation to a code of practice, means a person for whom the code is providing guidance.

(2) The Director may—

(a) prepare and publish a code of practice,

(b) request another body to prepare a code of practice, or

(c) approve of a code of practice prepared by another body, whether or not pursuant to a request referred to in paragraph (b),

for the purposes of one or more of the following:

(i) the guidance of persons, including healthcare professionals, assessing whether a person lacks capacity in relation to any matter;

(ii) the guidance of decision-making assistants;

(iii) the guidance of co-decision-makers;

(iv) the guidance of decision-making representatives;

(v) the guidance of attorneys;

(vi) the guidance of special visitors;

(vii) the guidance of general visitors;

(viii) the guidance of court friends;

(ix) the guidance of healthcare professionals as respects the circumstances in which urgent treatment may be carried out without the consent of a relevant person and what type of treatment may be provided;

(x) the guidance of persons acting as advocates on behalf of relevant persons;

(xi) the guidance of other persons (including healthcare, social care, legal and financial professionals) acting on behalf of relevant persons;

(xii) with respect to such other matters concerned with this Act as the Director thinks appropriate.

(3) Where the Director is minded to exercise his or her power under subsection (2)(a) or (b), he or she shall consult with such persons as the Director considers appropriate having regard to the matters to which it is intended that the code, when it is prepared, will relate and such persons may include any of the following:

(a) the Health Service Executive;

(b) the Health Information and Quality Authority;

(c) the National Disability Authority;

(d) the Citizens Information Board;

(e) representatives of professional bodies in the healthcare, social care, legal and financial sectors;

(f) representatives of healthcare, social care, legal and financial professionals.

(4) The Director shall, before publishing a code of practice pursuant to his or her power under subsection (2)(a) or approving of a code of practice pursuant to his or her power under subsection (2)(c)

(a) make available, to the persons whom the Director considers appropriate having regard to the matters to which the code relates (which may be any of the persons who fall within paragraphs (a) to (d) of subsection (3) ), in such manner as the Director considers appropriate, a draft of the code,

(b) invite the persons to whom he or she has made the draft available to make representations in writing on it to the Director within a period determined by the Director, being a period of not less than 30 days from the date of making the draft available to those persons,

(c) consider the representations (if any) received, and

(d) make any modifications that he or she considers appropriate to the draft.

(5) The Director shall not publish or approve of a code of practice under subsection (2) except with the consent of—

(a) if the code does not relate to healthcare matters, the Minister after consultation with the Mental Health Commission and the Minister for Health, and

(b) if the code relates (whether in whole or in part) to healthcare matters, the Minister for Health after consultation with the Minister and the Mental Health Commission.

(6) Where the Director publishes or approves of a code of practice under subsection (2), he or she shall cause a notice to that effect to be published in Iris Oifigiúil and such notice shall specify—

(a) the persons or classes of persons for whom the code is providing guidance,

(b) the date from which the code has effect, and

(c) the place where a copy of the code may be viewed, inspected or purchased.

(7) The Director shall keep posted, on the Internet website of the Director established under section 95(1)(j) or by the other electronic means referred to in section 95(1)(j) a copy of each code of practice published or approved of under subsection (2), as the code is in force from time to time, on and from the date on which the code has effect.

(8) The Director shall arrange for that part of the Internet website or other electronic means referred to in section 95(1)(j) which contains a code of practice pursuant to subsection (7) to ordinarily be accessible by members of the public.

(9) Subject to subsection (10), the Director may—

(a) amend or revoke a code of practice published under subsection (2), or

(b) withdraw approval of any code of practice approved of under subsection (2).

(10) Subsections (3) to (5) shall, with all necessary modifications, apply to a code of practice that the Director proposes to amend or revoke, or withdraw his or her approval of, under subsection (9) as subsections (3) to (5) apply to a code of practice that the Director proposes to publish or approve of under subsection (2).

(11) Where the Director amends or revokes, or withdraws his or her approval of, a code of practice published or approved of under subsection (2), the Director shall cause a notice to that effect to be published in Iris Oifigiúil and on the Internet website or by other electronic means referred to in section 95(1)(j) specifying—

(a) the code to which the amendment, revocation or withdrawal of approval, as the case may be, relates and, if applicable, particulars of the amendment,

(b) the persons or classes of persons in respect of whom the code is so amended, revoked or approval is withdrawn, as the case may be, and

(c) the date from which the amendment, revocation or withdrawal of approval, as the case may be, shall have effect.

(12) A document bearing the seal of the Mental Health Commission and purporting to be a code of practice published or approved of under subsection (2) or, where such a code has been amended under this section, the code as so amended, shall be admissible in any legal proceedings.

(13) A person concerned shall have regard to a code of practice published or approved of under subsection (2) when performing any function under this Act in respect of which the code provides guidance.

(14) Where it appears to a court, tribunal, or body concerned, conducting any proceedings that—

(a) a provision of a code of practice published or approved of under subsection (2), or

(b) a failure to comply with a code of practice published or approved of under subsection (2),

is relevant to a question arising in the proceedings, the provision or failure, as the case may be, shall be taken into account in deciding the question.

(15) To the extent that a code of practice published or approved of under subsection (2) is for the purposes of court friends, the provisions of the code shall, with all necessary modifications, apply to a person who falls within paragraph (b) of section 36(8) in respect of a relevant person as those provisions apply to a court friend for a relevant person.

(16) A code of practice published or approved of under subsection (2) shall not relate to any of the provisions of Part 8.