Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I welcome the opportunity to speak on this motion. I note the Chairman of the Oireachtas Joint Committee on Justice and Equality, Deputy Ó Caoláin, acknowledged my presence for this debate. I assure him and other Members that I regard it as my duty to attend in person for this important debate on an important report. I am pleased to have the opportunity to be here.

As Deputies will be aware, the management of the courts is the responsibility of the Courts Service, which is independent in exercising its functions under the Courts Service Act 1998, and the High Court has jurisdiction in wards of court matters. Having regard to the important issues raised and the work undertaken by the committee, I am pleased to be joined by Ms Joyce Duffy, a senior official in my Department, Mr. Sean Quigley, head of human resources at and accountant for the Courts Service, and Ms Alice White of the Courts Service. Important issues have been raised and it is important that they be addressed. In this regard, I wish to confirm that my Department and the Courts Service have received and reviewed the report on the wards of court published in February 2018 by the justice committee. I thank Deputy Ó Caoláin and the members of his committee for their interest in the matter. I note that six recommendations relating to wards of court matters were made.

I assure Deputies that the Government is fully committed to the implementation of the Assisted Decision-Making (Capacity) Act 2015, which provides a modern statutory framework to support decision-making by adults with capacity difficulties and I welcome the upcoming changes in the wards of court system. The aforementioned Act is significant reforming human rights legislation framed to meet Ireland’s obligations under the UN Convention on the Rights of Persons with Disabilities, which provides a comprehensive and robust framework for the realisation of the rights of people with disabilities. The Act will also abolish the current wards of court system by repealing the Lunacy Regulation (Ireland) Act 1871.

The current wards of court system for adults will be phased out over a period of three years from the commencement of Part 6 of the Act. The Act offers a continuum of options to support people in maximising their decision-making capability. New administrative processes and support measures must be put in place before the substantive provisions of the Act can be commenced. These measures include the setting up of the decision support service within the Mental Health Commission, a body under the Department of Health.

I am pleased that the Revised Estimates for 2019 provided an additional €3.5 million for the establishment of the decision support service. My Department will continue to work closely with the Mental Health Commission and the director of the decision support service to deliver the full implementation of the Assisted Decision-Making (Capacity) Act 2015 as soon as possible.

The Deputies will be aware that it is a matter for the presiding judge, who is independent in the exercise of judicial functions under the Constitution, to determine the level of funding awarded in individual cases. I understand that in some cases, those awards may not be sufficient to provide the care and assistance that the person needs or requires. Therefore, I have signed the commencement order bringing Parts 1, 2 and 3 of the Civil Liability (Amendment) Act 2017 into operation with effect from 1 October last year. The Act, which allows courts the power to award periodic payments rather than a lump sum payment in cases of catastrophic injury, will provide much-needed financial security to persons requiring lifelong care and assistance following a catastrophic injury. I believe the availability of a periodic payment to those who have suffered catastrophic injuries will ensure they will receive the care and assistance they require for the rest of their lives.

I wish to turn to the specific recommendations as presented by the committee in its report and as highlighted this afternoon by the committee Chairman, Deputy Ó Caoláin. I will begin with the first recommendation. The Courts Service has advised me that in December 2017, Mazars, a leading international audit firm, was appointed to conduct the audit of 63 ward-of-court cases. The review showed that there were no significant losses incurred by these cases during the financial crisis and that virtually all of these cases had net realised gains when the units were sold. The significant investment returns from investment performance extended the available funds to meet ongoing care and maintenance in respect of these cases by a considerably longer period than would have been the case if the cases had not been invested in growth funds. In effect, the reduction in the available funds in certain cases to the point where they are likely to run out is not attributable to poor investment performance. Rather, it is due to a combination of other factors, including the level of expenditure incurred to care for the ward of court, the value of the compensation awarded by the court and the life expectancy of the ward. Therefore, the availability of a periodic payment to catastrophically injured persons is important in ensuring that the ward will have sufficient resources and will receive the appropriate level of care and assistance that will be required for the rest of his or her life.

With regard to the second recommendation, the Courts Service has informed me that the wards of court office commenced providing statements automatically to the committees of wards of court during the third quarter of 2017. These statements are high-level reports on the funds in court and the performance of the funds and, if more detailed reports are required at a later stage, they can be made available on request. I understand that many committees of wards of court have received two statements at this stage. The Courts Service will continue to send out statements to committees of wards of court on an annual basis.

The third recommendation relates to a number of Departments and is under consideration by my Department. My Department officials are engaging with the relevant Departments to discuss and establish any action possible on foot of this recommendation. I understand that the Department of Employment Affairs and Social Protection, through its own resources and its funding of the Citizens Information Board, provides timely, accurate and accessible information on its supports through a variety of methods and these are available to the committees of wards of court. I believe that since annual statements are being issued to the committees on a regular basis, the eligibility of the ward for income supports from the Department of Employment Affairs and Social Protection should be noted prior to the depletion of the ward's funds.

The fourth recommendation concerns the Assisted Decision-Making (Capacity) Act 2015 and the upcoming changes to the wards of court system. It is anticipated that commencement of most of the provisions of this Act will take place during 2020. Each adult ward will be reviewed in accordance with the new system. A ward who is found to have capacity will be discharged from wardship. A ward who continues to have capacity needs will be discharged from wardship and offered the support option most appropriate to his or her needs. In this regard, the Government is making the necessary financial resources available for the setting up of the decision support service through an allocation of a sum of €3.5 million in this year's Department of Justice and Equality Vote. I wish to confirm that the commencement of most of the provisions of the Act will take place next year.

With regard to the fifth recommendation, the Office of the Attorney General has advised that the proposals on the audit of wards of court funds by the Comptroller and Auditor General is incompatible with the Constitution's architecture and is not consistent with Article 33.1. The advice of the Attorney General is that wardship funds are not public funds but are subject to the control and supervision of the High Court. These are essential obstacles to enabling the Comptroller and Auditor General to take on responsibility for auditing such funds. The advice of the Attorney General is also that legislating for Comptroller and Auditor General oversight of these funds could undermine the independence of the Judiciary and the administration of justice under Articles 34.1 and 35.2 of the Constitution. The Courts Service has advised that there is already independent oversight of the wards of court funds. The funds are independently audited by external auditors in compliance with the generally accepted auditing standards and that the audited statements are published.

Under the sixth recommendation, the committee called upon the Government to ratify the UN Convention on the Rights of Persons with Disabilities without further delay. I am pleased to note that Ireland has now ratified the UN Convention on the Rights of Persons with Disabilities and the convention came into force for Ireland on 19 April 2018. The optional protocol will be ratified following the completion of the first reporting cycle under the convention.

I am pleased to have had the opportunity of being here. I hope that I have addressed many of the issues raised in the report. I am happy to listen to any further observations or submissions that members of the committee or more generally Members of the House have to make in the course of the debate.

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