Seán Fleming (Laois, Fianna Fail) | Oireachtas source

I welcome the opportunity to speak in this debate and I thank Deputy Ó Caoláin, the Chairman of the Oireachtas Committee on Justice and Equality, and all the members of the committee who produced this fine report some time ago.

Above all, I thank the members of the families of wards of court many of whom are with us today and have been in regular contact with us as Members of the Oireachtas in relation to their ongoing difficulties in the funding of necessary services to provide for their family members who are wards of court. Certainly, there have been major difficulties in relation to the funding, despite awards being made by the courts some time ago and being managed by the Courts Service. That is one of the principal reasons we are here today.

I acknowledge also the work of Inclusion Ireland, which has been in contact with us and which has asked for a fully independent review of the management of the Courts Service wards of court funds. They also are seeking an independent review of the manner in which the Courts Service interacts with the wards of court and their families. They include many concerns the families have. This is important because everybody feels they are shut out, excluded and not consulted. They are told they have no real business here and that the service is responsible for the wards of court. We have seen it in several cases. We all know individual cases where this is so.

Above all, we need adequate funding in the Estimates to allow the full commencement of the Assisted Decision-Making (Capacity) Act 2015. I am told it will cost €9 million to get it fully up and running. I acknowledge the Minister stated here today there is an allocation of €3.5 million. It is a start but it will not allow the service get up to the capacity we require as urgently as possible.

While I am not a medical practitioner and I am merely going on the experience of those I have met, persons can become wards of court because of capacity issues, as a result of accidents or in many cases due to catastrophic injuries suffered at birth. People have told me that they went to court, the award was made and at the last minute before leaving the court they were told the court was making a member of their family a ward of court. All solicitors know that this is the situation because the person, clearly, if he or she is getting such an award for a catastrophic injury, has not capacity. By definition, the courts know that they must deal with that issue. However, the family members tend not to have been informed. Many of them get a shock and do not really understand what this is about. It gets dropped on them at the last minute. There is no debating it in the courts. The facility is part of the courts system. One of the reasons we are here is the separation of powers between the courts and the rest of public life, including the democratically elected national Parliament. The matter has to be dealt with.

There have been some cases recently and I have been dealing with a couple of cases. The Minister provided the information for persons who want to get out of being wards of court. There were seven requests last year and seven the previous year, all of which have been granted. That is where the persons go for medical tests and it is deemed that they have capacity. It means, in some cases, not specifically the cases that the families brought to our attention, that the HSE has been too quick off the mark in the situation where it sees an old person in a nursing home or a person who needs to be brought into a nursing home and it is not satisfied that person will be looked after by next of kin, and it moves quickly. There is a closed shop once one gets into the court dealing with these issues. The HSE gets somebody made a ward of court and sometimes the family, extended family or the neighbours who have been looking after the person might not be aware of this issue.

I take slight issue with what the Minister for Justice and Equality stated about the independence of the courts, these not being public funds and the Comptroller and Auditor General not being allowed audit them. Wearing my hat as Chairman of the Committee of Public Accounts, I come at this from a different angle. This information might be a surprise because the committee to which I refer discussed this as recently as today with the State Claims Agency. That agency pays out €350 million per annum on the various compensation claims, most of which are due to medical negligence. I refer to the type of cases where catastrophic injuries happened at birth. A high proportion of the money the State Claims Agency pays out, which is taxpayers' money, is paid directly to the Courts Service in respect of wards of court. The Minister might not be aware that the majority of the funds going into the wards of court fund come straight from the taxpayer through the State Claims Agency. Most cases, including the case we heard about yesterday, involve public funds going into the wards of court fund. I accept that when there is a car accident, a private insurance company is involved and in such a situation it is not public funds. We must approach it differently. I take the view that if somebody does not have capacity - this should be dealt with under the new legislation, the Assisted Decision-Making (Capacity) Act 2015 - the funding should not be put into the Courts Service system at all and should be managed by the National Treasury Management Agency, which is the agency that manages and invests everything on behalf of the State. The State Claims Agency, which is the agency which negotiates the settlements in court cases, is the best placed organisation to manage this. I accept the Comptroller and Auditor General cannot go in and audit anything in the Courts Service because there is a separation of power between the Courts Service and the Oireachtas. That is fine. The answer is we should not have the funds under the Courts Service.

When one thinks about it, who are the judges or the Courts Service to know anything about managing investments? I accept they hire expertise. However, it is still not their brief. Judges are legal practitioners making different categories of decisions every day of the week and they are not geared to manage public funds. We must take those funds out of the Courts Service. It is a burden on the Courts Service. It should not be dealing with these issues. Let those who manage funds manage funds and let the Courts Service and the courts do their job. When the Assisted Decision-Making (Capacity) Act 2015 fully gets up and running, we should move to the funds going to and being managed by the State where there is accountability and transparency. That could be done fairly promptly. It would probably be a more direct way of dealing with some of these issues.

I would also be concerned if the Courts Service has any role at all in the Assisted Decision-Making (Capacity) Act 2015. I do not know whether the Act comes under the Department of Justice and Equality. I thought, because it refers to mental health, it should be under the Department of Health. When one thinks about it, most of those concerned are made wards of court on medical grounds. This should be done in the medical sphere and the funds should be managed by a State body, the job of which is to look after public funds. It is not the way people have been taking this debate but I ask that the matter be reconsidered in that light. The Minister correctly states in relation to the wards of court that it is matter for the deciding judge who exercises his judicial functions and one cannot cut across that when he or she sets an award in court. I accept the judge should make his or her decision and set the award, but he or she should be off the pitch thereafter and the management of those funds should not be under the stewardship of the judges. The judges have been involved in adjudicating and ruling on the level of the awards and they should have no further role in it. That is another way of going about this.

The periodic awards is a good idea. The State Claims Agency told us at the Committee of Public Accounts two hours ago that it has made three to date. I hope that is a start. I understand from what they say that there is provision for periodic awards but it is always up to the injured party to decide whether he or she wants to accept it or not. It is not compulsory. People have an option when it comes to that as well. The lump-sum issue can be dealt with based on the periodic awards, if people want to go that route.

The question is who manages these funds and who provides for these services. There has to be further engagement with the HSE because many of the major difficult cases are as a result of medical negligence. The HSE should have an ongoing commitment to the injured person for life, if it is the result of medical negligence by an employee or group of employees who are involved in the delivery and where there was negligence. The HSE should always have a monitoring role in the provision of services into the future. We are all aware of cases where there was no medical negligence, people got serious injuries or some other illness and required 24-7 nursing care, and the HSE provides that in a small number of cases. It is very expensive but the HSE has a role in this matter.

I want to speak up generally on behalf of the wards of court and their families. Even though the families are not involved in theory, they are wholly involved in it every day. They need to be supported because they have been on a long campaign for a number of years and they want to see action on this matter.

I accept the Minister's legislation is significant but some further changes need to be made to resolve this situation once and for all and take this issue out of the Courts Service for the future.

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