Nursing Homes Support Scheme Act 2009

F46[Principles with regard to specified persons


46A. (1) Subsections (2) to (7) shall be taken into account by a specified person when acting as such.

(2) A specified person shall not act as such unless it is necessary to do so having regard to the individual circumstances of the person on whose behalf he or she is acting (in this section referred to as the "other person").

(3) An action by a specified person in respect of the other person shall—

(a) be made in a manner that minimises—

(i) the restriction of the other person’s rights, and

(ii) the restriction of the other person’s freedom of action,

(b) have due regard to the need to respect the right of the other person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the action, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the action.

(4) A specified person, when acting as such, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the other person on whose behalf he or she is acting to participate, or to improve his or her ability to participate, as fully as possible, in the action,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the other person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the other person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors that the other person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the specified person reasonably considers that it is not appropriate or practicable to do so, consider the views of any person named by the other person as a person to be consulted on the matter concerned or any similar matter,

(e) act at all times in good faith and for the benefit of the other person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(5) The specified person, when acting as such, shall have regard to—

(a) the likelihood of the recovery of the other person’s capacity in respect of the matter concerned, and

(b) the urgency of so acting prior to such recovery.

(6) The specified person, when acting as such—

(a) shall not attempt to obtain personal records relating to the other person or other information to which that person is entitled that is not reasonably required for so acting,

(b) shall not use such records or information for a purpose other than in relation to so acting, and

(c) shall take reasonable steps to ensure that such records or information—

(i) is kept secure from unauthorised access, use or disclosure, and

(ii) is safely disposed of when he or she believes it is no longer required.

(7) In this section, "specified person" has the same meaning as it has in section 47.]




Inserted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2023), s. 102(c), S.I. No. 194 of 2023.