January 18, 2018:

The National Safeguarding Committee has called for the urgent commencement of the Assisted Decision-Making (Capacity) Act 2015, as a new report it publishes today finds the 19th century Wards of Court regime to be inadequate and archaic.

The report, Review of current practice in the use of wardship for adults in Ireland, found there is substantial public confusion and lack of understanding around the Wards of Court system, and that it relies too much on the integrity of family members and professionals.

The National Safeguarding Committee, which promotes the rights of adults who may be vulnerable, suggests therefore that the guiding principles contained in the 2015 Decision-Making (Capacity) Act be commenced immediately.

These principles identify relevant human rights obligations and the need to respect the right of a vulnerable person to dignity, bodily integrity, privacy, autonomy and control over his or her personal affairs.

Under the current system a court steps in and acts as agent for an individual deemed by the court to lack capacity to make decisions for himself or herself.  Usually, a person is made a Ward following an application by a family member, the person’s own solicitor or the Health Service Executive (HSE). There are almost 3,000 wards, with total assets of over €1 billion.

The report says there should be a presumption that a person has capacity to make decisions until an inquiry finds that a person lacks such capacity.  There should be a customer charter to deal with representatives of wards, and a transparent complaints process.  It found that

  • There is confusion and lack of understanding around the entire Ward of Court system
  • The wishes of an individual being made a Ward are not heard during an application for Wardship. This includes issues such as whether or not they want to be made a Ward at all; consent to medical procedures; where they wish to live; or how their property is to be disposed of.
  • More often than not prospective Wards have no advocate who is independent of the person making the application to have him or her made a Ward.
  • Vulnerable people in respect of whom wardship is sought are often given court papers they can’t understand, but not given the order of the court or medical reports about themselves
  • There is no recognition that a Ward may be able to make a decision for themselves such as consent for medical procedures
  • There are no clear guidelines around conflict of interest in relation to the Applicant and also the person appointed to represent the Ward (known as the Committee).
  • There are no clear guidelines on the quality of medical reports on the basis of which individuals are made Wards

The paper makes a number of recommendations:

  • Medical practitioners assessing the capacity of people for the purposes of a wardship application should be required to assess the person’s ability to make a decision on the specific issue for which a decision is required at the time the decision has to be made.
  • Lawyers should ensure independent representation for the person involved in any application, and should also provide information, medical reports and court orders expressed in a way that is appropriate to the circumstances of the person involved.
  • The Courts Service should consider adopting guidelines and protocols to ensure transparency, consistency and fairness with regard to any legal proceedings in wardship matters, and should also have a clear complaints process.
  • The HSE should ensure that lawyers used in Ward of Court proceedings have appropriate expertise in relation to the law on decision-making capacity and human rights obligations in relation to persons who may be vulnerable.
  • The HSE should produce national guidelines for legal and medical practitioners to ensure the protection of the rights of a prospective Ward in proceedings

The National Safeguarding Committee was established in December 2015. It is a multiagency and inter-sectoral body in recognition of the fact that safeguarding vulnerable people from abuse is a matter that cannot be addressed by any one agency working in isolation, but rather involves a number of agencies and individuals working collaboratively with a common goal.

The Assisted Decision-Making (Capacity) Act 2015 will ultimately replace the wards of court system but is not yet fully commenced. This Act provides that the capacity of all existing wards be reviewed within a period of 3 years and discharged from wardship. Those wards who, on review, are found to lack the capacity to make decisions will transition to the new system.

Opening address at the National Safeguarding Committee Launch by 

Aine Flynn, Director of Decision Support Service.

Review of current practice in the use of wardship in Ireland

For my part as Director of the Decision Support Service and on behalf of the Mental Health, I wish to welcome you all here. May I thank Mr Justice Kelly for giving of his time to join us for the launch by the National Safeguarding Committee of what I believe is a timely and significant report.

Our current wardship procedure largely operates under a piece of legislation, the Lunacy Regulation Act which is almost 150 years old, dating from the middle of the reign of Queen Victoria. The fact that they are antique does not mean, without more, that our procedures are unfit for purpose but they are certainly fit for review.

And it is of course possible to critique current wardship practice without intending any criticism of those who administer the present system and operate within its constraints. As a practitioner I have been struck by the sensitivity and the empathy of the Court, its officials and the staff of the General Solicitor’s Office. I have been struck also by the willingness to embrace (to an extent) the ethos of the Assisted Decision-Making Capacity in advance of that Act’s commencement. We see this particularly with:

  • the provision of representation to some Wards (notably where treatment in the UK is proposed) and
  • arrangements for periodic review where wards are detained…
  • including appearance before the Court by detained wards allowing them a level of involvement and the important opportunity to be heard

Systemic deficiencies remain however and these are eloquently identified in this report.

  • Wards do not typically see the medical report relied on by the Court to make a finding that they are of unsound mind, unless they object to the petition;
  • Yet they are served with the Court Order –very possibly with no meaningful explanation of it- and invited to respond;
  • There is no provision of advocacy at the time of the petition;
  • There is no scheme of review of wards generally, only of those who are detained;
  • As the report notes, consultation with the ward and meaningful efforts to ascertain their will and preference on aspects of their care, property, living conditions or place of residence is not provided for in policy or legislation;
  • Flowing from this: there is no recognition of levels of capacity- of the reality that a person might have capacity to arrive at decisions in some matters but not others. As a former ward, a client of mine, observed: “I know I need help looking after the money from my claim but why is the President of the High Court deciding whether I should have a colonoscopy on Tuesday?”

In this report, the NSC argues that there is potential to accommodate the functional test of capacity, that is a time specific, issue-specific test within the current structure of wardship, so that a ward might make other decisions for himself or herself as and when they arise, even after a finding of ‘unsoundness of mind’ under the 1871 Act.  As we have it now, wardship really is an all or nothing. When one enters wardship, all but mundane decision-making devolves, notwithstanding that…

a conclusion that a person lacks decision-making capacity is not an offswitch for his rights and freedoms”,  as Judge Peter Jackson has stated in the Court of Protection in England.

The functional test of capacity is of course one of the cornerstones of the as-yet-not commenced 2015 Act but as the report observes, the 2015 Act gives statutory expression to what is already the common law position as set out by Ms Justice Laffoy in the Fitzpatrick decision and adopted in case law since. Under the functional test, one has capacity if able to

  • understand,
  • weigh up and
  • retain information relevant to a decision
  • and communicate that decision, with support if necessary

As the report mentions, this functional assessment has also been adopted by the HSE in its National Consent Policy which emphasises enhancing and maximising capacity, yet the report finds evidence that this policy is not uniformly applied by practitioners carrying out wardship assessments. It is easy to see where difficulties arise, given that the criteria set by the 1871 Act require a general finding that a person is of unsound mind and incapable of managing his person or property.

The report makes recommendations as to how best practice might be adapted and offers guidelines as to how the functional test and the presumption of capacity might be adopted within ward of court assessments. But it is not straightforward.

Further in the report, the writers contrast the protections supplied to persons detained under the Mental Health Act 2001- including the preparation of second opinion reports and the automatic provision of legal representation- with the more ad hoc or indeed absent protections supplied to a ward of court.

What is demonstrably true is that the commencement of the Assisted Decision- Making Capacity Act is much needed. And as Director of the Decision Support Service, I am very conscious of that. It has been a deferred dawn. The 2015 Act is a lengthy, dense piece of legislation and even after a very long gestation period and many drafts, it is imperfect. Wardship will be dismantled and all current wards will exit wardship within three years. However, as the report notes, measures for the review of wards do not afford wards the same access either to the Courts or to legal aid as other persons whose capacity requires adjudication. I understand that this inequality of treatment been raised with the Department and it is acknowledged that this part of the 2015 Act will have to be amended before it is commenced.

Another acknowledged gap in the Act, is the absence of Deprivation of Liberty Safeguards to provide for people who lack capacity to consent and who reside in a situation where they are subject to continuous supervision and not free to leave. Objectively, they are held against their will. Under Article 5 of the European Convention on Human Rights, this can only happen in accordance with a procedure prescribed by law and must be amenable to review and challenge. Heads of Bill have been recently published by the Department of Health and when enacted these should form Part 13 of the 2015 Act. The Heads of Bill have been put out for public consultation, with submissions due by 9th March and I would urge all interested parties to have their say.

If the Act has deficiencies- and I think it does and I hope these will be addressed before it is commenced- there are other things which it gets right. I have mentioned already the functional capacity test which is to be welcomed. Further, where capacity is at issue, the Act establishes a framework of graduated supports Decision Making Assistants, Co-Decision Makers and –at the upper level of need, court-appointed Decision Making Representatives. The Act provides for registration and monitoring of decision-making arrangements by the Decision Support Service.

As mentioned in the report, the Act also enshrines, Guiding Principles which should inform all interventions, including those of a court. These principles include:

  • A presumption of capacity
  • Minimal intervention
  • Respect for self-determination, autonomy and bodily integrity
  • The right to be unwise
  • Respect for individual will and preference

This last ‘will and preference principle’ marks a major shift away from the paternalism of the ‘best interests’ approach which underlies wardship.

I am conscious that this is a development which not everyone wholeheartedly embraces. I note that one contributor to the report, a legal practitioner wholeheartedly doesn’t embrace the changes introduced by the Act and expresses the view that wardship is a perfectly fine system and shouldn’t be replaced. And I think we, certainly I, as Director, must be cognisant of that view.

When the Mental Health Act was introduced there were similar misgivings, at sometimes bordering hostility. I can recall a psychiatrist addressing a conference about 10 years ago, saying that his patients hated having Mental Health Tribunals, that they were a big imposition and people would much rather have a cup of tea than attend a hearing to review their detention. Now of course, Mental Health Tribunals are part of the landscape.

The Assisted Decision-Making Capacity Act is disruptive legislation. As Director, I have a duty to educate and to raise public awareness. I believe that codes of practice currently in preparation and a HSE guide will further assist. There is frankly much still to do. Preparatory work is underway and I am fortunate to have the full support of the Mental Health Commission as we progress to implementation. If motivation for the task were required, it is to be found in this report which is both a resource and an inspiration.

Once again I compliment the National Safeguarding Committee and the writers, Kate Butler and Fionnuala McGee on this very comprehensive and accessible study.

And I hope we all look forward to the day when we will no longer hear the word ‘lunacy’ used in connection with anyone in an Irish Court.