Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

I am taking this Private Members' Bill on behalf of my colleague the Minister for Justice and Equality, Deputy Flanagan, who is unable to attend. I thank Deputy Mattie McGrath for bringing the Bill forward and giving the House an opportunity to discuss this important issue.

The important objective of the Bill is to protect, on reasonable grounds, the financial autonomy of vulnerable persons, specifically the elderly, who lack reasonable mental and physical capacity, to guard against financial abuse. A person might, because of their age or for another reason, be especially vulnerable to exploitation. He or she may lack the capacity to take certain decisions and, because of that, could be taken advantage of by persons on whom he or she relies for care. The Government fully recognises that and has taken steps to address the issue, most notably the Assisted Decision-Making (Capacity) Act 2015 and ongoing policy initiatives in the health sector.

Section 1 of the Bill sets out definitions for “elder abuse”, “financial abuse” and “vulnerable person”. I understand that the purpose of the section is to codify in legislation what is meant by financial abuse of the elderly. Deputies will be aware that definitions are normally used in Bills to explain what is meant by terms that are used in the Bill itself. The terms defined here are not used in the Bill and cannot have any application outside of the Bill. In that context, I note that the Bill appears to conflate vulnerability and age. Of course, not all vulnerable adults are elderly and, similarly, not all elderly persons are vulnerable.

Section 2 is the substantive part of the Bill. It creates several offences relating to the financial abuse of elderly persons. Most if not all of the offences set out are crimes under existing legislation. Subsection (1)(a) makes it an offence to use an elderly person’s confidential financial information and funds for unauthorised self-gain. This would, in most cases, be prosecutable as a fraud offence. An offence under section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is committed where a person dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act. Paragraph (a) of subsection (2) creates an offence of taking or forcibly taking the belongings of an elderly person without his or her permission or consent. This would be covered by the offence of theft under section 4 of the Criminal Justice (Theft and Fraud Offences) Act. Under that section, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it. Paragraph (c) of subsection (3) makes it an offence to “forge signatures and make a false instrument/statement with the intention that it shall be used to induce another person to accept it as genuine and, by reason of so accepting it to do some act, or to make some omission, to the prejudice of the elderly person”. This is already covered by the offence of forgery under section 25 of the Criminal Justice (Theft and Fraud Offences) Act.

These new offences are not required. Moreover, they would be more difficult to prosecute than the existing offences because they have additional elements that would have to be proven by the prosecution. For example, in regard to the offence of taking an elderly person’s belongings, the prosecution would have the burden of showing that the person is elderly. There is the added complication of there being no definition of "elderly".

There are also issues regarding the penalties provided for in the offences. The offences under subsection (1) carry a penalty of “a fine not less than €600”. For the offences under subsection (2) the penalty is “a fine not less than €1,500”. For the offences under subsections (3) and (4) the penalty is “a fine not less than €3,000 and/or imprisonment for a term not less than 3 years”. As Deputies may be aware, normal practice is for legislation to specify maximum penalties, leaving the precise sentence to be determined by a judge depending of the facts of each case. Perhaps that is what Deputy McGrath intended in the Bill. If that is the case, then the penalties fall far short of those under the theft and fraud offences legislation. Under the existing law, the maximum penalties are an unlimited fine and imprisonment for a term ranging from five to ten years. The much lower penalties in the Bill would be a significant departure from the existing position and would greatly reduce the deterrent effect.

On a literal reading of the Bill, these penalties would be minimum penalties but no maximum penalties are provided. That would also be very problematic. In general, minimum sentences are not used in Irish law. Absolute minimums, where there is no discretion for a sentencing judge to impose a lower sentence, even in exceptional circumstances, are very rarely used - murder is one example - and even then there tends to be a maximum sentence. There are also constitutional issues as there is no scope for a judge to impose a sentence in keeping with the circumstances of the offender and the offence. The lack of any maximum sentences is particularly concerning. It means that life imprisonment could be imposed for these offences which, again, would be a dramatic departure for the law in this area.

As I say, it is not completely clear what interpretation is intended but either way, the result is disproportionate sentences. Furthermore, Members will be aware that the Minister has stated that he will provide for the introduction of sentencing guidelines in the Judicial Council Bill, which is currently before the Seanad. These guidelines, which will be constitutionally compatible, will ensure greater consistency in sentencing.

There are also several drafting issues in the Bill. For example, as I have mentioned, there are defined terms that are not used elsewhere in the Bill. There are also terms that are imprecise and perhaps should be defined. Section 3 provides for a regulation-making power but does not set out any detail as to what is to be prescribed by regulations. There are some places where words are repeated and others where it seems words have been omitted. As I mentioned, the Government is committed to ensuring that elderly and vulnerable adults are safeguarded from financial abuse. Since Deputy Mattie McGrath introduced his Bill in November 2015, the Assisted Decision-Making (Capacity) Act has been enacted. That Act provides a modern statutory framework to support decision making by adults with capacity difficulties. It provides for the repeal of the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811. The current wards of court system for adults will be phased out. The Act offers a continuum of options to support people in maximising their decision-making capability. The Act provides for the setting up of the decision support service within the Mental Health Commission, which is under the aegis of the Minister for Health. It also provides for three types of decision-making support options to respond to the range of support needs that people may have with regard to decision-making capacity. With each of the three decision-making support options, decisions can be made on personal welfare, property and finance or a combination of both. As part of a suite of safeguards against exploitation of persons with decision-making difficulties, the Act creates a number of offences relating to persons with decision-making capacity difficulties. In particular, under section 145 of the Act, a decision-making assistant, co-decision-maker, decision-making representative, attorney for the relevant person or designated healthcare representative who willfully ill-treats or neglects the person will be guilty of an offence and will be liable on conviction to a fine of up to €50,000 and-or a term of imprisonment of five years.

The Act also creates a number of offences relating to coercion or undue influence of a person with capacity difficulties that forces the person to enter into, alter or revoke one of the decision-making support arrangements under the Act. Appropriate sectoral safeguarding initiatives may complement the protections afforded to vulnerable adults under the criminal law. The Government has tasked the Department of health with developing an over-arching national policy on adult safeguarding in the health sector. Work in relation to developing this sectoral policy is under way in consultation with key stakeholders. The policy will cover the entire health sector, public, voluntary and private. It will also address collaboration, co-operation and referral arrangements between the health sector and other key sectors, including the justice and welfare systems. The Department of Health aims to circulate a draft health sector policy for public consultation by the second half of next year and to secure Government approval for detailed and costed policy proposals around the end of 2019 with draft legislation being introduced as required thereafter to underpin the approved policy.

In conclusion, I again thank Deputy Mattie McGrath for having raised this issue. While the Government is fully supportive of the objectives of the Bill, we believe they are achieved by other measures: the existing criminal law, the Assisted Decision-Making Capacity Act and operational measures and policies in the health sector. For these reasons and because of fundamental difficulties with the criminal law provisions proposed, I am opposing this Bill.

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