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Where are the DSS specifications?

The relevant legislation permits and/or requires the Director of the Decision Support Service to specify a variety of matters in relation to the creation of decision-support arrangements. Where are they?

Relevant Provisions

This is not intended to be an exhaustive list but is intended merely to give some flavour of what the legislation says about the specifications that may/must be made by the Director of the DSS.

Permissive Provisions

In the first instance, several legislative provisions say that the Director may, with the consent of the Minister, make written specifications in relation to the form and content of documentation. These provisions include:

Other provisions in the legislation do not expressly require that the specifications be in writing, but permit the Director to make specifications. These provisions include:

  • Section 95B(1)(a), which permits the Director to specify that a relevant document (i) be in electronic form, (ii) be in a format that the Director specifies, and (iii) be sent or submitted in electronic form;
  • Section 95B(1)(b), which permits the Director to specify the circumstances in which a specification under paragraph (a) shall or shall not apply;
  • Section 96B, which permits the Director to specify the form of signature (including electronic signature) to any document under the Act.

Mandatory Provisions

Several provisions require that decision-support arrangements be in compliance with specifications made by the DSS.

Examples of the provisions referenced above include:

  • Section 10(2), which requires that a Decision-Making Assistance Agreement be “in compliance with … specifications made under subsection (4A)”.
  • Section 17(1), which requires that a Co-Decision-Making Agreement be “in compliance with … specifications made under section 31A”.
  • Section 59(2), which requires that an Enduring Power of Attorney be in writing “in an instrument which is in compliance with … specifications made by the Director under section 79A”.

The Principle of Legal Certainty

Legal certainty represents a requirement that decisions be made according to legal rules. It is often explained in terms of citizens’ ability to organise their affairs in such a way that they do not break the law.

According to the Organisation for Economic Co-operation and Development (OECD), of which Ireland is a member:

” … the concept first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability.” (as cited in this paper)

Discussion

I have searched the DSS website and have been unable to find any reference to specifications made under the Act. Section 95(j) of the Act provides that one of the functions of the Director shall be to:

“establish a website on the internet or provide, or arrange for the provision of, other electronic means by which to disseminate information to members of the public relevant to the performance of the Director’s functions and which will, in the opinion of the Director, assist members of the public to understand the operation of this Act and the Director’s role in relation thereto”

Anecdotally, practitioners are reporting that piecemeal information is being received but only when the practitioner has taken the trouble to telephone the DSS directly to ask questions. The answers are provided over the phone, but nothing (from what I understand) has been provided in writing in relation to DSS specifications.

If the DSS has not made specifications, or has made specifications but has not published them, this raises immediate issues.

For example:

  1. If a person makes an Enduring Power of Attorney today, how can it ever be established that the said Enduring Power of Attorney is in compliance with DSS specifications?
  2. If the DSS were to refuse to register a decision-support agreement on the basis that it did not comply with DSS specifications, how is anyone to assess the reasonableness of that decision without sight of the specifications?
  3. If an individual wished to judicially review the DSS in relation to a decision made by the DSS, how on earth would the High Court be able to assess the reasonableness or otherwise of the DSS specifications when they are not in writing?