Assisted Decision-Making (Capacity) Act 2015

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Review of co-decision-making agreements

26. (1) The Director shall conduct a review of each co-decision-making agreement on the Register not earlier than 3 months before and not later than 3 months after the first anniversary of the date of registration of the agreement and thereafter at intervals not exceeding 3 years.

(2) In conducting a review under this section, the Director shall carry out such reasonable enquiries, including, in particular, consulting with the appointer and co-decision-maker as well as any special visitor or general visitor who has had contact with the appointer or co-decision-maker, as he or she considers necessary to determine whether the following criteria are met:

(a) paragraphs (e) and (f) of section 22 (1) continue to apply;

(b) the co-decision-making agreement does not fall within section 20 ;

(c) the co-decision-maker has performed and continues to be likely to perform his or her functions as co-decision-maker;

(d) the co-decision-maker has complied with the requirements under this Act that are relevant to him or her;

(e) the matters provided for in subparagraphs (ii) and (iii) of section 21 (4)(f) continue to apply.

(3) In order to determine whether the matters provided for in subparagraphs (ii) and (iii) of section 21 (4)(f) continue to apply, the Director shall require statements to that effect to be submitted to him or her by—

(a) the same registered medical practitioner who provided the original statement under section 21 (4)(f) or, where that practitioner is not reasonably available, another registered medical practitioner, and

(b) the same healthcare professional who provided the original statement under section 21 (4)(f) or, where that professional is not reasonably available, another healthcare professional of the class prescribed by regulations made under section 31 .

(4) Where, following a review under subsection (1), the Director is of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (2) does not apply, he or she shall notify the co-decision-maker and the appointer of that view, provide reasons for same and give the appointer and the co-decision-maker an opportunity to respond within a time period specified by the Director.

(5) Where, at the expiry of the period for response specified under subsection (4) and following a review of any response submitted by the appointer or the co-decision-maker or both pursuant to that subsection, the Director remains of the view that one or more of the criteria set out in paragraphs (a) to (e) of subsection (2) does not apply, he or she shall notify the appointer and the co-decision-maker of that view and make an application to the court for a determination on the matter.

(6) Where, pursuant to an application to it under subsection (5), the court determines that one or more of the criteria in paragraphs (a) to (e) of subsection (2) does not apply, it may determine that the co-decision-maker shall no longer act as co-decision-maker for the appointer concerned.