Catherine Connolly (Galway West, Independent) | Oireachtas source

I thank the members of the Committee on Justice and Equality for all their work, in particular the chairperson. I also welcome the visitors to the Visitors Gallery.

I want to put this in perspective. When we are talking about money invested by the Courts Service, I note its annual report for 2018 referred to almost €2 billion, or €1.929 billion to be precise, and I am sure it has gone up since then. That is not all for wards of court and it includes a number of different categories, including residential redress board cases, minors, the compensation fund and so on. Under that fund, there are 2,864 wards of court and the value of that is €1.38 billion, which is not insubstantial.

If we are talking about that type of money, then we have to talk about accountability and supervision. I am acutely aware, given my own background, of the separation of powers and the role of the courts and I want absolutely no interference with them. That said, we are talking about accountability. The Minister said the accounts are audited and that that is oversight. If that was the case, there would be no need for the Committee of Public Accounts to sit every Thursday because all of the accounts are audited. However, we still have oversight through the Comptroller and Auditor General. I am not sure why the advice of the Attorney General took nearly 20 years, given that, going back to 2000-02, it was mooted that the Comptroller and Auditor General should have jurisdiction over these accounts. Repeatedly, different reports said that should happen but it has taken this long to get the legal advice. The Minister might clarify precisely when the legal advice was asked for and given.

In regard to public moneys, the Chairman of the Committee of Public Accounts has made the point that it is public money. Some of it is certainly public money but some of it is not. Some of it belongs to people who, for one reason or another, had to be made wards of court and their estate and their money was minded by the courts. However, much of the other money is public money that is awarded. I ask the Minister to clarify when he got the advice, when he asked for it and, moreover, what changes there may be to that advice in the context of the 2015 Act, when it is fully implemented, given we will no longer have wards of court. As I understand it, every single ward of court will be discharged, albeit with different levels of assistance. What are the consequences and implications of that?

This report of February 2018, which has already been gone into in detail by Deputy Ó Caoláin, contains six recommendations. That report came on top of a report by the National Safeguarding Committee which is dated December 2017, although I do not know when it was published because there is often a difference between the date on the report and the date of publication, as we know from the Health Service Executive and Tusla, in that one does not bear a resemblance to the other. In any event, that detailed report, "Review of current practice in the use of wardship for adults in Ireland", had 18 findings and 38 recommendations, to which I will return. The report from the Committee of Public Accounts in July 2015 had six recommendations and the report which is under discussion today has six more recommendations and, of course, all of the recommendations overlap. There are also recommendations from Inclusion Ireland, which I also thank.

I have put this in perspective in regard to the numbers and the money. Let me put it in perspective in regard to the Council of Europe which way back in 1999 set out:

The fundamental principle underlying all the other principles, is respect for the dignity of each person as a human being. The laws, procedures and practices relating to the protection of incapable adults [I have a difficulty with that wording] shall be based on respect for their human rights and fundamental freedoms.

A recent judgment from England, which has gone further than us in its protection of people with disabilities in this particular area, means they come under the UK Comptroller and Auditor General, although I realise there is a different system under a written constitution. In 2015, Judge Peter Jackson stated:

As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an 'off-switch' for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important.

Deputy Catherine Murphy referred to paternalistic attitudes. That certainly jumped out at me, as a woman, as I read all of these reports. Yes, we have made progress and we have the Act of 2015, although, unfortunately, almost four years later it has not been implemented and we still have no definitive date, although the Minister has told us it is 2020. There will then be another three years of a rollout, where all the wards of court will be reviewed. Of course, that legislation came after a very long delay. We are talking about legislation going back over approximately 150 years and using inappropriate words like "lunacy" and "lunatics". It has taken a huge effort to get as far as 2015. We were disgraced across the world because while we signed the UN Convention in 2007, we did not ratify it until 2018 and I understand we were the last country of the European Union to ratify it. We still have not ratified the protocol and, of course, without ratifying the protocol, although the Minister might correct me on this, there is no remedy if somebody goes forward under that UN convention.

In regard to the language used, there was talk last week about the mental health legislation of 2001 and about the need to review it because it is not up to date. The extraordinary thing is that there are a whole raft of protections for somebody with a mental illness under that legislation, although it is still inadequate in the 21st century. However, much more protection is offered than is offered to any ward of court. When we look at a ward of court, we see a judge making a decision in the best interests of that ward, but the voice of that ward is really never heard. That ward is not even given a copy of the court order and I understand he or she is not given a copy of the medical reports, because the judge making the decision and the whole system think it is better that somebody who is going to be made a ward of court should have as little knowledge as possible.

I have looked through the recommendations. I mentioned the Comptroller and Auditor General and why the advice is coming now and what it is based on. There is an overlap with all of the recommendations. I want to highlight the findings of the National Safeguarding Committee because they include the recommendations made in the justice committee report. As I said, there are 18 findings, all of which are worth looking at. Although I will not read all of them, it is stated:

The Voice of the Ward is not heard during an application for wardship...

There is no automatic system of providing Respondents (prospective Wards in an application for wardship) with independent legal or non-legal advocacy...

When a person is made a Ward, he or she does not receive the order of the court. In one case, a Ward requested a copy of the order but the Office of Wards of Court declined to give it to them partly on the grounds that it would be difficult to understand. [That is some communication and some decision-making skills.]

There is no system of review of Wards. There is no system of unannounced visits or otherwise... There is an excessive reliance by the Office of Wards of Court and the General Solicitor on information from the Ward’s carers...

I wish I had more time. The findings are worth looking at and there are also all of the recommendations. The findings continue:

There is no transparent protocol of complaints to the Office of Wards of Court...

There is considerable confusion and lack of understanding around the Ward of Court system and what it means for individuals.

I would always say the HSE has a conflict of interest or at least it should be closely examining whether it has a conflict of interest on each occasion where it brings an application. The findings also state: "The HSE has no transparent protocols about when and why it will instigate wardship proceedings and also has no centralised guidelines", and so on and so forth.

We then come back to the Act of 2015, which has not been implemented. Shame on us that it has taken so long. At this point in time, more applications are being made for wards of court that are absolutely unnecessary and will have to be undone when the legislation is finally in operation.

It does not make sense on any level, but what does not make sense at all is the feeling on the ground among the most vulnerable people in regard to the communication by the Courts Service. I understand their point of view. I have read what they had to say in regard to the losses and the Mazars report. I can see their argument. There are no grounds for the absence of good communication, particularly as we enacted the Assisted Decision-Making (Capacity) Act 2015, which will be rolled out, presumably, in 2020. These are issues that should be taken very seriously and there are many more.

I support the committee's recommendations, which are very basic. I understand that the recommendation that this fund be brought under the remit of the Comptroller and Auditor General is a little complicated but why was this not made clear long before now? Can we have clarity around it now?

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