23rd May 2023
12th May 2023 Highland Radio Broadcast – Assisted Decision Making (Capacity) Act 2015
As we approach summer 2023, our contributor Seamus Gunn today highlighted the implementation of the Assisted Decision Making (Capacity) Act 2015 which came into effect on the 26th April last. He said that this could be a game changer for thousands of families throughout the country, mentioning that there are upwards of 2,150 individuals in Wardship at present and that there is a fund of approx. € 1.9 Billion to be administered under the new regime, whenever the review has taken place of all the current Wards. The Act has been a long time in gestation, requiring an amendment in 2022 to get to the stage today where the Decision Support Service (DSS) has been set up under the Mental Health Commission which dates back to the 2001 Legislation. For the first time, capacity has been recognised as a fundamental Human Right and there is now a presumption that everybody has capacity until proven otherwise. He referenced the different tiers of the new roles that have been introduced by the DSS.
He said at the lower level a decision-making assistant could be appointed for one who was in the early stages of a capacity issue and that while they would ultimately make the decision, they would have the help of the designated person and the DSS would be notified.
The next tier referred to was the co-decision maker arrangement, where the individual would appoint a person to make decisions in co with them. Again, as with all the roles, the DSS oversees. The agreement would be registered with them and no decision could be made without the involvement of the Relevant Person. He said that if one got to a stage of a more advanced capacity issue, while the old system of the Ward of Court has now been abolished, you would now have a role for a decision-making representative who would ultimately be appointed through the Circuit Court, rather than the High Court. The Enduring Power of Attorney would also come under his heading, which once again would be registered with the DSS pending it being triggered by the relevant person losing capacity.
Finally, he said that another major development was the use of health care directives and health care representatives where one wanted to make decisions in advance when they had capacity as to what types of treatment that they were to receive in the event that they lost capacity.
Our contributor noted that the old legislation referred back to the Lunacy Regulations Act of 1871 and that now finally we have got to a situation where for the first-time capacity was being acknowledged as a fundamental human right and protected under legislation now introduced. No doubt this topic/issue which has an impact on so many lives, shall be further debated in the future.
While the ascending or descending star of Donald Trump (depending on which side of the fence one is on) was also discussed, the following Q&A touched on a number of issues.
21st April 2023
3rd March 2023 Highland Radio Broadcast
The March show kicked off highlighting the challenge against the Personal Injury Guidelines which opened in the Supreme Court earlier in the week and concluded with a reserve decision. Seamus Gunn outlined the background to the case and the Personal Injury claim by one Bridget Delaney of Dungarvan who had a trip and fall on a public footpath in April 2019 when she suffered a fracture to her right ankle. The matter was pursued through PIAB, with an award of € 3,000.00 for General Damages for the Injury sustained. He said that preceding the Personal Injury Guidelines, this type of injury would have attracted Damages of € 18,000.00 – € 20,000.00 or thereabouts. He explained that the result of the current challenge would have serious consequences for victims of accidents who are pursuing the matter through PIAB and the Courts, and also the Insurance industry while awards since the introduction of the Guidelines have been cut in some incidences by 40%, he said that the gains were not being passed on by way of premium reductions. He said that the matter came before the High Court in 2022 when Justice Meenan rejected Ms. Delaney’s claim that PIAB had acted in breach of fair procedures and that her assessment should not have been conducted under new guidelines. She also sought Declarations that they were in breach of her rights to Natural and Constitutional Justice and that the Judicial Council acted outside its powers in adopting the Guidelines. All arguments were rejected in the High Court and as there was a serious public interest point arising, the Appeal went straight to the Supreme Court. It was heard before a 7 Judge Court. Our contributor thought that the main pillar of the argument for the Appellant was that there was an overlap in relation to the Separation of powers in that the Judiciary who sat on the Judicial Council of which there was 146 to adopt the guidelines recommended by the committee which was set up as a result of the Judicial Council Act 2019, were now being requested to Adjudicate upon its Constitutionality. He said that he was somewhat uneasy about the manner in which the guidelines were introduced in the first place and that they were set by Judges who ultimately had to make decisions in relation to their implementation. The reserve decision is awaited with interest.
What followed in the Q&A touched on many wide and varied topics from Consumer Rights, the office of the DPP, Property Acquisitions and the Courts.
12th January 2023
Highland Radio Broadcast 6th January 2023
The year opened with a wide and varied Q&A this morning with our contributor Seamus Gunn dealing with medical negligence, explaining the steps involved in commencing such an action. Then moving on to a number of Succession questions including the 1965 Succession Act, the pros and cons of putting one’s arrangements in place, to property matters and title issues with the complications that can arise when mapping discrepancies are discovered between properties.
This followed an earlier discussion on the ongoing issues arising from the release of Enoch Burke from Mountjoy pre-Christmas to the latest developments in the story with likely more to follow.
With every good wish to all our clients and listeners for the New Year and going forward in 2023.
24th December 2022
Xmas 2022 Highland Radio Interview
In what is likely to be the final instalment of the 2022 year, it could not be passed without referencing the World Cup in Qatar. Our contributor Seamus Gunn said the regime has been described as authoritarian and repressive. He said that FIFA had lost an opportunity to influence major reforms in Qatar, the question of Human Rights, discrimination against women, the LGBT community and in particular highlighted the plight of the migrant workers. He said that it is in the media that up to 6,500 lives have been lost in the construction of the Stadia and the infrastructures in preparation for the games. It is reported that workers who migrated from countries such as India, Pakistan, and Nepal in the hope of finding better working and living standards, in a lot of cases worked excessive hours for little more than their bed and board. The minimum wage that was introduced at circa $ 257.00 per month, was too little too late. Women’s rights were also highlighted and the Authoritarian regime under which they lived. He noted that FIFA requested in 2009 that they put in place an International Ladies football team and that over a period of 8 years it is said that they played only 1 game. Values taken for granted in the Western world were in scarce supply in Qatar. More could have been done by FIFA to highlight the situation.
Greg Hughes made the point that each country had the right to practice it’s own customs and beliefs, a point which Seamus Gunn agreed with saying that there is no difficulty with respecting another person’s culture, while at the same time questioning and challenging certain aspects of it.
The abandonment of the wearing of the love bands at the beginning of the tournament, was another example of principles being compromised as was the refence to some pundits earning big money to be in Qatar commentating and promoting the matches.
As the football carnival leaves Doha and the Stadia are dismantled, it will be interesting to observe further developments.
Various topics were discussed in the Q&A that followed.
Festive greetings to all our listeners, friends, and clients.
Listen to the full interview below 👇
24th December 2022
Highland Radio Interview 18th November 2022
Coming to the penultimate show of 2022, the announcement of the Motor Insurer’s profits increasing to € 176 Million for 2021 did merit comment and discussion this morning.
A € 5 Million increase on the previous year comes on the backdrop of the 3rd report from the Personal Injuries Assessment Board (PIAB) recently published which showed general damages in relation to injury awards down by 44%. Our contributor Seamus Gunn outlined the background to the introduction of the Personal Injuries Board from 2003 UpToDate, the fact that there have been 2 books of Quantum to assist with assessing claims and more recently since April 2021 new guidelines were laid down by the Judicial Council following the 2019 Act. He also referred to further legislation in the pipeline being the Personal Injuries Resolution Bill which is currently progressing through the Oireachtas to further aid PIAB in extending periods of time for assessing claims and also giving them more powers to retain claims of a psychological nature which otherwise were the subject of Authorisations issuing. New measures put in place to curb awards to date have resulted in significant savings by insurers which Greg Hughes said were not being passed on to the consumer. Our contributor referenced examples of public liability insurance skyrocketing over the years for small businesses struggling to keep their doors open and keep people employed while insurers stood to make vast profits. He said that the purpose for which the legislation and PIAB was introduced was to make savings which ultimately were to be passed on to the public. He said that for the period of 2021 it was stated that premiums per policy fell just 2%. However, compared to 2009 the average premium in 2021 was 23% higher. He noted that there was little doubt that claims have reduced significantly since 2009, while there has been no benefit for the consumer. He said that he was of the opinion that it was the victim who is entitled to compensation who is being penalised firstly on awards and secondly on the premiums they were paying where the insurance companies were the benefactors. He thought that the same level of scrutiny should be applied to insurers as has been to the Personal Injury industry. He believed that this merited further attention. Greg Hughes referenced the small population of Ireland compared to the UK from which such profits were being made and also the loading on young drivers. Both host and contributor seemed to be ad idem on the imbalance herein. It shall be interesting to observe if the matter is addressed on the national stage as we approach the year end.
Some news relevant to a new Family Law Division/Court was referred to in the usual lively and varied Q&A that followed. All can be listened to below.