Dáil debates

Wednesday, 11 December 2013

Assisted Decision-Making (Capacity) Bill 2013: Second Stage (Resumed)

 

3:25 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent) | Oireachtas source

The Bill is welcome in so far as it makes substantial improvements to the existing legislation dating from 1871. Our outdated wardship system has been heavily criticised by international human rights bodies and by the people unfortunate enough to be forced to avail of the obtuse and grossly unfair provisions, which labelled a person who needed definite legal protections as a lunatic. Up to now such people have been given a very real form of second-class citizenship. I am pleased the Bill restores a measure of equality to these citizens and places them at the heart of the new legal arrangements. The Bill will finally allow the State to ratify the UN Convention on the Rights of Persons with Disabilities.

I wish to highlight some concerns with the Bill, perhaps not with the legislation itself but with how it might be applied. Families need to have better access to information when they find themselves immersed this new system, which often arises as the result of a sudden accident. With no guidance available for these people, assets can be mismanaged or abused by an uncaring and remote system. I have heard of horrible cases of the abuse of people who have been made a ward of court. We need to ensure that this legislation properly protects them and lets them have as much say as possible over their own affairs. That is the aim of the legislation and is laudable. On several occasions I have asked on the Order of Business when this legislation would be introduced. Obviously it was delayed for a considerable time owing to technical reasons. It is important to get it passed, but more important will be how we subsequently implement it.

Free legal aid needs to be made available and it needs to be specifically tailored. It is often assumed that wards of court are extremely wealthy, but in many cases the means are quite limited and family members need access to proper legal aid if that is the case.

We have to be certain that there is no conflict of interest among those agents of the State who may be exercising decision-making on behalf of an individual. This may extend to HSE personnel, nursing home agents, etc., so it may not just be family members.

We need guidelines to ensure abuse of persons with limited capacity does not take place. There have been a number of cases, most notably the recent case of an Italian woman the UK. She has bipolar disorder but on becoming pregnant had stopped taking her medication. As a result her behaviour became extremely erratic and dangerous, and in the absence of next of kin or friends she was taken into care. Her baby was delivered by caesarean section and put up for adoption. Clearly in that case, complete control was taken from the person. That did not happen in this country, but it shows the kind of thing that can happen where a person loses that independent control over his or her own affairs.

Regarding costs, very little burden should be placed on the individual in the transition to the new system. Some significant concerns have been raised over wards of court funds. In some cases moneys collected by the courts, including fees, financial assets of the wards, etc., have been risked in private investments.

We have undergone a financial crash. People would have been charged with making investments to ensure that there is a return on the money. In principle, that is not a bad thing but great care must be taken. If the fund is mismanaged or it works to the disadvantage of the person, it may be that the funds may not be there to provide for the person's needs. It will be important that the judges of the Circuit Court have adequate knowledge of the new law.

This is an extremely important Bill and I support it. I take the point made by the last contributor that there urgently needs to be a change of attitude too. In recent years people have talked much more openly about mental health issues, which is very welcome. Sometimes mental capacity is different from mental health. This House should take the lead in attitude. We should not take it lightly when a complaint is made of the nature of the one just made. The Minister owes Deputy Luke ‘Ming’ Flanagan an apology for making the remarks he did.

Comments

No comments

Log in or join to post a public comment.