HELPING VULNERABLE PEOPLE MAKE DECISIONS

he cornerstones of the Assisted Decision-Making (Capacity) Act 2015 https://www.oireachtas.ie/documents/bills28/acts/2015/a6415.pdf (the Act) are the provisions on the functional approach to decision making capacity ( s.3 of the Act) and the guiding principles which are to apply in relation to any interventions under the Act (s.8 of the Act).

These two hugely important provisions are already enshrined in common law and best practice but have been given statutory effect and will become statutory obligations upon the commencement of the 2015 Act. In the meantime, people should be aware that there is a presumption in common law that every adult has the capacity to make a decision unless the contrary is clearly indicated and that the High Court in Fitzpatrick v K (No. 2) [2008] IEHC stated that decision-making capacity is to be defined on a functional or decision specific basis. Capacity is to be assessed by solicitors on the client’s ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is being made. Solicitors/Carers/ Family/ Guardians should not make across-the-board assessments of capacity but should treat decision-making capacity as issue specific and time specific. The assessment of capacity to make a decision is a legal test.

This functional approach is also contained in:

  • HSE National Consent Policy (see Chapter 5 – Has the service user capacity to make the decision?) and
  • the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (7th edition 2009 and8th edition 2016 – see Chapter 3, Part 10 – Capacity to Consent).

International human rights standards require that a person is supported and assisted to maximise his or her decision-making abilities. We should ensure, in particular when dealing with vulnerable clients, that all practical steps are taken to permit, encourage and facilitate a client to make a decision prior to any determination that the person does not have decision-making capacity and that only necessary steps are taken to intervene with a person’s decision-making.

A person should not be considered unable to make a decision in respect of any matter merely because they have made or are likely to make an unwise decision – however, in this context, it is very important to ensure that the client has a full understanding of the risks and an ability to weigh up the information relevant to the decision.

If an enduring power of attorney is registered, attorneys should ensure, where appropriate, that the donor of the enduring power of attorney be permitted and encouraged to participate in any decision affecting him/her as donor. This is a requirement under the Powers of Attorney Act 1996 and under the 2015 Act when commenced.

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Will solicitors and lawyers be replaced by computers ?

Recently, at Chancery Lane, London, I had the pleasure of attending a lecture by UK Law Society President on the future of technology and the Law. The following is an extract of some of the points made by him :-

“Artificial intelligence is not only around us but it is part of us

Better, faster, more productive… these used to be words to describe what we wanted from our internet broadband connection.

Now they describe what we expect not only from all our products and services but also from each other. The expectations that we have from the world and the world has from us are dynamic, ever-changing and transforming at speed.

By combining a basket of different technologies, artificial intelligence (AI) is increasingly seen as the answer to these unprecedented expectations and needs:

  • Siri, on your iPhone, is artificial intelligence
  • Anti-lock brakes in your car, learning the road conditions is artificial intelligence
  • Amazon’s recommendations on things that you might like is artificial intelligence

AI is all around us. Complicated and repetitive tasks are better performed by computer algorithms and mechanisms than by the human mind. The margin of error is narrower, the work is done more quickly and the training required is minimal.

Around the world the justice and legal systems have started to embrace the use of technology and the benefits of artificial intelligence. Data analytics are used, for example, to help predict crime and shape social policy.

Firms all around the world have improved the way they conduct legal research by using systems like ROSS. Developed by IBM, it is a tool which allows legal practitioners to use natural language and ask questions, rather than use keywords. ROSS then provides citations and suggests topical readings from a variety of sources.

The uses of artificial intelligence do not stop there, however. I recently looked at an app that:

  • tracks how many steps we take
  • tracks how many hours of sleep we have, and even
  • tracks our heartbeats.

We are living in a world in which we have become part of the app.

Our phones and gadgets seem to know us better than we know ourselves. They can even pass judgement on our lifestyle choices, such as congratulating us when we hit a certain fitness target. Mine has broken, as it seems to have forgotten to congratulate me…

We must face the fact that artificial intelligence will become more entrenched in our lives. There is a correlative duty for us as solicitors to scan the horizon, think of the consequences of its uses and, where needed, we must act.

What are the consequences?

There is a wealth of research on the ethical consequences of artificial intelligence. However, I just want to focus on the legal effects that result from this new use of technology.

Use of data

Artificial intelligence relies heavily on the use of personal and corporate data for all its practical applications. This inevitably raises serious issues of privacy and data protection. How will ‘big data’ – such as your search engine history, your online banking, your medical history – be collected, be used, and stored? For what purposes can that data be accessed and by whom? Who is responsible for keeping it safe? How will we handle global data breaches across different jurisdictions?

There is some domestic and emerging international legislation on data protection, however, it is limited and reactive. The legal profession has a responsibility to start answering these questions now and to work together with policy makers and legislators to build a robust framework with appropriate safeguards.

Tort and accountability

Corporate technology giants, software developers and computer programmers are leading on innovation and setting the pace of a new world order.

Google estimates that in less than five years, there will be driverless cars on the streets of our  main cities. This activity, which inevitably involves risk, raises questions of tort and accountability when things go wrong.

These self-driving systems may need to make split-second decisions that raise legal questions. A child suddenly runs into the road and the car has to choose: hit the child or swerve into an oncoming bus.

  • How does the car decide?
  • Who decides what the car decides?
  • Who is liable if it makes the wrong decision?

Legal practitioners and academics need to come together to think ahead of the consequences of the new uses of technology and put forward ideas for the best legal response. ”

So, interesting Technological Times ahead for the legal profession !

I believe that much of what we do will be replicated by computers within 15 years. How will solicitors in Kilkenny and rural Ireland survive?  That’s the question we need to be asking regularly.

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Insurers fail to prosecute fraudsters – according to former Irish High Court Judge

Former president of the High Court, Mr Justice Kearns has criticised the State’s loss-making insurers for not seeking the prosecution of people found to have made fraudulent injury claims.

Speaking yesterday at a conference on Ireland’s soaring personal injury costs and insurance premiums, Mr Justice Kearns said: “A particular bugbear of mine is the lack of resolve there appears to be by many insurers to tackle fraudulent claims and fight them to the end.”

When fraud is uncovered in civil cases, typically the claimant withdraws their claim without any further repercussions, he said, with insurers failing to make a complaint to the Garda, who could investigate and refer to the DPP.

The issue has been thrown into sharp relief by a recent UK study by Axa, the French insurer, which found that up to a third of respondents have either committed insurance fraud or thought it was justifiable to exaggerate a claim.

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Does the Insurance Industry also need to be honest ?

Insurance companies paid out more money on claims in 2011 and 2012 than they did in 2014, according to new figures released in the Dáil.

This is despite repeated claims from the industry that the increased number and cost of claims are behind massive insurance premium hikes in the last two years, Fianna Fáil Finance spokesman Michael Mc Grath said last week.

Mr. Mc Grath requested information relating to the total amount insurance companies paid out in claims – as reported to the Central Bank – between 2011 and 2015.

In a written response, the Finance Minister Michael Noonan said the figures relating to 2015 are still being compiled. However, the available figures showed insurance companies paid out €1.01 billion in 2014. This is less than the €1.5 billion paid out in 2011 and €1.06 billion paid in 2012. Just over €987 million was paid out in 2013!

Mr. Mc Grath said the figures show the amount paid out in claims in 2014 was 36% less than the amount paid out in 2011.

“While we do not yet have figures for the amount paid out on claims in 2015, the data to the end of 2014 does not substantiate the assertion by the industry that motor insurance claims are the main reason behind rocketing premiums,” he said.

So whose not telling the truth ?

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Need information on financial accounts of non-profit organisations e.g. charities

The Benefacts project has recently gone live – www.benefacts.ie. Benefacts is a non-governmental organisation that provides free public access to extensive information about the entire non-profit sector in Ireland including financial accounts.

This new database of civil society organisations in Ireland includes charities, philanthropies, sports bodies, political, human rights and advocacy organisations, business and trade associations. They aim to make all Irish non-profits more accessible and transparent, reduce bureaucratic duplication for non- profit organisations and provide data to decision makers to support comparative and trend analysis nationally and internationally.

Benefacts collects public data from many public sources and publishes it in a harmonised format creating, for the first time, a single point of online access to the entire non-profit sector in Ireland. Benefacts lists more than 20,000 organisations that are separate from the private sector and from government, and that have been established for social, cultural or environmental good.

For further information please see www.benfacts.ie or contact info@benefacts.ie

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Motor Insurance Industry needs to be investigated

In yesterday’s Irish Times, 7th June 2016, Dorothea Dowling the former chairwoman of the Motor Insurance Advisory Board and the Injuries Board wrote an interesting article on the car insurance industry here. She states as follows :-

“The motor insurance system in Ireland needs a fundamental review for a number of reasons that are not often addressed.

It is one thing to buy insurance, but it is quite another to find that it’s worthless. While I am not a fan of copying England, major legislative reform there will curtail insurers’ attempts to repudiate policies.

A 2011 review by the Law Reform Commission here found that repudiation was also frequent. We can see examples of such unsuccessful attempts before our courts today.

Thankfully, EU directives prevent motor insurers from repudiating compulsory cover for liability to injured parties. The Motor Insurance Advisory Board (MIAB) report in 2002 questioned whether insurers were complying with those EU laws. That may still be an issue. Some judges find ways to impose EU law on insurers.

So-called uninsured motoring is purportedly one of the causes of high premiums, but how many vehicles are not covered by a policy? Surely simple cross-checking of databases – those of insurers and of the vehicle register – would answer that question and identify defaulters for prosecution.

Recently fears were expressed that motorsports venues would be put out of business because the European Court of Justice held that compulsory motor insurance did not just apply to roads.

However, in this context, Irish law, as laid out in section three of the Road Traffic Act 1961, reads: “Public place means any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge.”

So it is not just crashes that are covered by compulsory motor insurance. One hopes that policy indemnity, or the Motor Insurers’ Bureau scheme, is not being denied on the basis of a more restrictive definition.

It is only because of the existence of the Personal Injuries Assessment Board (PIAB), with whom all injury cases must be registered, that we know the total annual number of claims is 31,576. We can only account for the finalisation of 9,046 between the courts and PIAB. So there are 22,530 claims on which only insurers have the information on who is getting what. Insurers highlight a high volume of whiplash claims.

The last time there was access to raw data was during the MIAB investigation, and, from recollection, 80 per cent of the volume of claims accounted for only 15 per cent of the value. Cutting insurance costs by 15 per cent would not go anywhere near the fundamental reforms we need now.

Abolition of compensation

It strikes me as ironic that insurers advocate the abolition of compensation in line with the call in England for “care not cash”, with payment only for expenses. Whatever your view about such reform, I suggest it is ironic because Irish insurers are considerably more profitable than English ones. By 2012 the combined operating ratio there had not risen above breakeven since 1996 compared to what some regard as super-profits here between 2002 and 2008.

One cannot assess insurer results on a year-by-year approach. If reviewed on a longer basis and excluding outlier companies, the technical result at 2014 was 6 per cent or €215 million on the €5.2 billion of motor premiums for five years and 17 per cent at €1.4 billion on the €11.3 billion for premiums for 10 years. Isn’t that a lot of money for us not to know where it’s going?

As with flood damage, insurers seem to want a risk-free world. The kernel of the insurance business is risk, but records indicate that they are not very good at predicting it or pricing it. Alterations to financial models are a regular occurrence.

For example, the State had a windfall of €125 million in 2014 when recoverability of welfare benefits became a new liability on insurers with retrospective effect from August 2014. As I predicted in this newspaper (July 15th, 2013) jurisdictional increases in the courts also had a retrospective effect on liabilities, as the higher limits applied from the date of proceedings rather than to accidents from 2014.

Subsequent to the last increases in 1991 the cost of motor insurance rose by 81 per cent in a decade. Ireland is not a predictable environment for potential defendants, insured or otherwise.

What was foreseeable, however, was the increased solvency margin now required by the regulator. This had been under discussion since 2007. While insurers are risk professionals, their management of that foreseen challenge does not appear effective.

Accurately analysing faults is essential to employing the appropriate solutions. We cannot do that without robust data. It does not seem like that data will be made available by insurers any time soon.

Robust approach

So what can we do? Avoiding additional errors is the first priority.

In my view, a revised book of quantum (guidelines for payouts for injuries) should not be produced by the PIAB for reasons of principle and pragmatism. In the latter context, judges are more likely to abide by a book of quantum that they produce, as in the UK.

As a matter of principle, a more robust approach to assessing injury has been indicated by the new Court of Appeal in a number of cases when reducing awards since November 2015. This would be like the European model, where disabilities are assessed in percentage terms.

Put crudely, if a maximum severity case such as the tragedies of paraplegia and quadriplegia equates to €450,000 on the scale of general damages, then what proportion of that pain and suffering is a whiplash?

We could also usefully move to the EU model, as recommended by the MIAB in 2002, where the coverage is based on the vehicle, as Ireland and UK are out of step with the rest of Europe. After all, with the advent of driverless cars, won’t coverage have to move that way anyhow? It would also be a step toward that elusive single EU market in financial services.

Dorothea Dowling is former chairwoman of the Motor Insurance Advisory Board “

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Injuries Board Ireland – interesting facts

At a recent briefing with the Irish Injuries Board, we were given some interesting information, by one of their solicitors, Suzanne Hill,:-

  • Motor injury claims account for 75% of total compensation awards
  • Public liability claims ( eg. fall on footpath, injury in supermarket etc.) is next at 17%
  • And injury compensation claims against employers is last at 8%

The amount of claims has increased in the last year, but this is being put down to more people at work and more people driving on the roads.

The average award by the Injuries Board has fallen from €23,166 in 2009 to €22,878 in 2015.

The lowest amount of claims per hundred of population is Kilkenny !

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EU Commission and Council recommend that Ireland invest in capital expenditure

The European Commission Country Specific Recommendations released last week highlight a worrying risk of critical under investment in Ireland’s economy.

Speaking last week on the recommendations, Ian Talbot, Chief Executive Chambers Ireland said, “Ireland has a growing population and an expanding economy, and needs significant capital investment to support this growth. The recommendations highlight a risk of a structural shift in the profile of Government expenditure, with much needed capital expenditure and investment being sacrificed for current expenditure. By necessity the Government was forced to reduce capital expenditure significantly during the crisis but we must now reverse this pattern as a matter of urgency and prioritise capital investment or we will jeopardise future growth prospects.

“Government must critically review their expenditure priorities and ensure that badly needed capital programmes in the areas of housing, transport, and water infrastructure are prioritised to ensure Ireland’s growth can continue.”

The Eu Council in it’s report, issued on 18th May 2016,recommended as follows =

HEREBY RECOMMENDS that Ireland take action in 2016 and 2017 to:

1. Following the correction of the excessive deficit, achieve an annual fiscal adjustment of 0.6 % of GDP towards the medium-term budgetary objective in 2016 and in 2017. Use windfall gains from strong economic and financial conditions, as well as from asset sales, to accelerate debt reduction. Reduce vulnerability to economic fluctuations and shocks, inter alia by broadening the tax base. Enhance the quality of expenditure, particularly by increasing cost-effectiveness of healthcare and by prioritising government capital expenditure in R&D and in public infrastructure, in particular transport, water services and housing.

2. Expand and accelerate the implementation of activation policies to increase the work intensity of households and address the poverty risk of children. Pursue measures to incentivise employment by tapering the withdrawal of benefits and supplementary payments. Improve the provision of quality, affordable full-time childcare.

3. Finalise durable restructuring solutions to lower non-performing loans, to ensure debt sustainability of households and to encourage lenders to reduce the debt of excessively leveraged yet viable businesses. Accelerate the phasing-in of a fully operational central credit registry covering all categories of lenders and debtors.

 

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Men 4 times more likely to commit suicide – Irish Times 24th May 2016

Today’s Irish Times has an interesting article on suicide, and it’s as follows =

“Men in the Republic of Ireland remain four times more likely to die by suicide than women, even though the male suicide rate has declined recently.

Publishing its suicide statistics report for 2016, the Samaritans suicide-prevention charity said the female suicide rate for the Republic increased by 14.7 per cent in the year 2013-2014, while the rate for men fell by 6.4 per cent.

It urged the new Government to take steps to reduce suicide. Estimates from the Central Statistics Office suggest that 459 people took their lives in the State in 2014, 368 men and 91 women.

Samaritans noted there was an increase in the overall suicide rate between the early 1980s and late 1990s, but it had been declining since then.

“After a period of fluctuation, the Republic of Ireland suicide rate has been decreasing since 2011. The overall suicide rate in the Republic of Ireland is at its lowest since 1993 and, between 2013 and 2014, there was a decrease of 3.3 per cent in the overall rate per 100,000.”

The male suicide rate hit a peak in 1998 and has decreased since then, with some fluctuations.

It is at its lowest since 1993, having decreased by 6.4 per cent between 2013 and 2014, the Samaritans said.

The female suicide rate has remained relatively stable during the 30-year period. Samaritans said the current rate was comparable to the rate in 1984, having increased by 14.7 per cent since 2013.

The highest overall rate of suicide is in the 50-54 age group. Men who die by suicide often fall into that age group, while women who take their own lives are more likely to be in the 25-29 age group.

Samaritans executive director for Ireland Catherine Brogan said each person who died by suicide left behind family and friends whose lives would never be the same again.

“Every single suicide is a tragedy,” she said. “Tackling suicide requires a wide range of agencies to work together, nationally and in communities, to give people the best chance to turn their lives around when they are struggling. Strong political oversight and leadership is required to ensure that the challenges we face in reducing suicide are overcome.”

The charity called on parties and elected representatives to make suicide reduction a priority by ensuring that Connecting for Life, the national strategy for suicide reduction, was implemented. It said ringfenced funding for suicide reduction must be maintained.

“We must all work together to encourage men and women to seek help before reaching a crisis point, so that they can access the support they need,” Ms Brogan said.

Getting help

She said everyone had a role to play in reducing suicide, and urged anyone struggling to take action and to visit a GP or contact the charity.

Samaritans may be contacted free from any phone on 116123 and the number will not appear on a phone bill. Its email is jo@samaritans.org. Information about local branches is at samaritans.ie.”

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Update on the Setanta case

The Supreme Court will hear the appeal by the Motor Insurers Bureau of Ireland (MIBI) of the recent decision of the Court of Appeal in the case of Law Society of Ireland v the Motor Insurers Bureau of Ireland.

As previously written in our blog, the case was initiated at the request of President Kearns, as the head of the Insurance Compensation Fund, in order to clarify whether or not the MIBI had liability for certain claims against Setanta Insurance policyholders following the insolvency of that company. Both the High Court and the Court of Appeal found in favour of the Law Society’s legal arguments, confirming that the MIBI’s liability under the 2009 MIBI Agreement extends to situations of insurer insolvency.

The Supreme Court may only hear an appeal from a decision of the Court of Appeal if it is satisfied that the decision involves a matter of general public importance or is required in the interests of justice. The Supreme Court determined that the MIBI appeal came within the former category. The appeal will address the following specific points:

  1. Whether the MIBI Agreement may properly be construed so as to impose liability or potential liability on insurance underwriters which are party to the MIBI Agreement to pay out in respect of claims against persons who were insured with Setanta, a Maltese registered insurance company, at the time of its entering into liquidation in April 2014.
  2. The correct principles to be applied in construing the MIBI agreement, whether it be a private agreement or an administrative arrangement between Government and the motor insurance industry, with particular reference to the influence of statutory provisions on the proper interpretation of the language thereof.
  3. If the MIBI is so liable, how any such liability or potential liability on the part of the MIBI impacts upon the power of the High Court to approve payments under section 3 of the Insurance Act 1964 (as inserted by section 4 of the Insurance (Amendment) Act 2011) authorising payments out of the Insurance Compensation Fund “only if it appears to the High Court that it is unlikely that the claims can be met otherwise than from the Fund.”

A date has yet to be fixed for the Appeal but it is hoped that an expedited date will be obtained in the coming months.

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