Assisted Decision-Making (Capacity) Act 2015
Complaints in relation to decision-making assistants
15. (1) A person may make a complaint in writing to the Director concerning F18[one or more of] of the following matters:
(a) that a decision-making assistant has acted, is acting, or is proposing to act outside F18[the scope of, or in breach of,] his or her functions as specified in the decision-making assistance F18[agreement, or in breach of this Act];
(b) that a decision-making assistant is unable to perform his or her functions under the decision-making assistance agreement;
(c) that fraud, coercion or undue pressure was used to induce the appointer F18[to enter into, or to vary or revoke, the decision-making assistance agreement].
F19[(1A) Following the receipt of a complaint under subsection (1) the Director shall carry out such review or investigation of the matter the subject of the complaint as he or she considers appropriate and shall, subject to subsection (1B), form a view as to whether or not the complaint is well founded not later than 3 months after the date of his or her receipt of the complaint (in this section referred to as the "initial investigation period").
(1B) The Director may, before the date of expiry of the initial investigation period, extend the duration of his or her investigation by a period of up to 6 months from that date by sending written notice to the complainant, the person who is the subject of the complaint and the relevant person concerned giving reasons for the extension.]
(2) F18[The Director shall, as soon as is practicable after having formed a view under subsection (1A)]—
(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to a matter specified in the F18[complaint,]
F19[(aa) notwithstanding paragraph (a), where he or she is of the view that the complaint is well founded and that—
(i) the provision of clarification by him or her to the decision-making assistant regarding the role of the decision-making assistant would be an appropriate resolution, or
(ii) the subject matter of the complaint could be appropriately resolved under section 96(4),
the Director may, not later than 3 months after having formed a view under subsection (1A), provide the clarification referred to in subparagraph (i), or proceed to resolve the complaint as soon as possible under section 96(4), as the case may be, and]
(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.
(3) A person who receives a notification under subsection (2)(b) may, not later than F18[3 months] after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(4) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an F18[investigation, to which this section shall, with any necessary modifications, apply].
F19[(4A) Where subsection (2)(aa) applies and the Director has provided the clarification referred to in subparagraph (i) of that subsection or has resolved the complaint under section 96(4) as referred to in subparagraph (ii) of that subsection, the Director may—
(a) request further information regarding the outcome of the clarification or resolution, as the case may be, or
(b) request confirmation that the complaint has been resolved,
from the complainant, the person who is the subject of the complaint or the relevant person, as the Director considers appropriate.
(4B) If the Director is not satisfied, following the receipt of the information or confirmation referred to in subsection (4A), that the clarification or resolution referred to in that subsection has satisfactorily resolved the complaint, the Director may make an application to the court in accordance with subsection (2)(a) or may take such other steps as he or she considers appropriate in order to resolve the complaint.]
(5) The court may—
(a) pursuant to an application to it under subsection (2)(a) F20[…] or
(b) pursuant to an appeal under F18[subsection (3) or (7)(b)],
make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making assistant shall no longer act as such in relation to the appointer concerned.
F19[(6) The Director shall, in accordance with this section, investigate a complaint under subsection (1) unless in his or her opinion there has been undue delay in making the complaint.
(7) A decision by the Director under subsection (6) not to investigate a complaint—
(a) shall be in writing, shall contain the reasons for the decision and shall be sent to the complainant as soon as possible after it is made, and
(b) may be appealed by the complainant to the court not later than 3 months after the date of receipt by the complainant of the decision.]
Substituted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2022), s. 13(a), (c)(i), (ii), (d), (e), (g)(ii), S.I. No. 194 of 2023.
Inserted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2022), s. 13(b), (c)(iii), (f), (h), S.I. No. 194 of 2023.
Deleted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2022), s. 13(g)(i), S.I. No. 194 of 2023.
Records relating to an investigation under section that has been or is being carried out by the Director of the Decision Support Service, or a person delegated under s. 98(2), are excluded from application of Freedom of Information Act 2014 by Freedom of Information Act 2014 (30/2014), s. 42(eb), as inserted (26.04.2023) by Assisted Decision-Making (Capacity) (Amendment) Act 2022 (46/2022), s. 104, S.I. No. 194 of 2022.