Frank Fahey (Galway West, Fianna Fail)

I commend Senators Henry and O'Toole, supported by Senator Quinn, on their initiative in presenting the Mental Capacity and Guardianship Bill 2007. The Government accepts the principle of the Bill which addresses the important and sensitive topic of legal capacity for adults with intellectual disabilities. In common with Senators Henry, O'Toole and Quinn, the Government recognises the need for reform of the law on legal capacity and for modernisation of the system for administration of justice in this area.

The subject matter of the Bill is complex but the Law Reform Commission has already undertaken important research and consultation. The Bill replicates the Law Reform Commission's draft legislative scheme. The Law Reform Commission published its report entitled Vulnerable Adults and the Law on 18 December last. The report follows the commission's consultation papers Law and the Elderly, published in 2003, and Vulnerable Adults and the Law: Capacity, published in 2005. The commission's key recommendations are to introduce a functional test of a person's mental capacity and to establish a new system of guardianship to replace the existing wards of court system.

The High Court is responsible for the operation of the wards of courts system which is administered by a registrar and staff of the Office of Wards of Court. The origin of the courts' jurisdiction in wardship over mentally incapacitated persons lies in the prerogative exercised by the sovereign as parens patriae, to have charge of the care and custody of incapacitated subjects. The role of the sovereign was customarily delegated to each lord chancellor. In 1961, the wardship jurisdiction was vested in the High Court, to be exercised by its president. When a person is made a ward of court, the court takes jurisdiction over all matters relating to the person and estate of the ward.

There are approximately 2,000 persons in wardship, most of whom are adults brought into wardship due to mental incapacity. The other category of wards consists of persons under 18 years of age taken into wardship as minors for particular reasons and in respect of whom mental capacity is not an issue. The principal purpose of wardship is to protect the person and property of the ward and to manage it for the benefit of the ward and his or her dependants, if any. While decisions affecting a ward are made by the President of the High Court, usually sitting in chambers, due regard is paid to the wishes of the ward and his or her family and it is only for the most cogent of reasons that those wishes would not be accommodated. The type of decisions required to be made may include the appropriateness or necessity for the sale of assets, the encashment of investments, the suitability of current accommodation, the use of a ward's funds to purchase suitable accommodation and the payment of allowances to a ward or dependent relatives. Decisions are also required to be made in respect of to health care decisions, including the carrying out of medical procedures, both routine and non-routine.

In every wardship matter, a committee of the person and/or estate of the ward is appointed. Where no suitable person is available or willing to act, the court will appoint the General Solicitor for Minors and Wards of Court to be committee of the estate of the ward. A committee means one or more persons to whom the welfare or affairs of the ward are committed. The committee acts under the directions of the court.

The principal legislation regulating the exercise of the wardship jurisdiction is the Lunacy Regulation (Ireland) Act 1871. The Title of the Act is indeed, as Senators suggested, unacceptable in today's language. In addition, there is a difficulty in operating under the Act because of the terminology it contains. The continued use, in legislation concerned with intellectual disability, of expressions which have long since acquired a pejorative meaning is no longer acceptable. While the Office of Wards of Court makes every effort to use more appropriate language in its day-to-day operations, the controversy that such terms generate has tended to colour the views of relatives and third parties towards a system which, despite its archaic nature, has in large measure operated for the great benefit and protection of incapacitated individuals.

The Office of Wards of Court also has a role regarding the registration of enduring powers of attorney pursuant to the provisions of the Powers of Attorney Act 1996. The path of recent legislative reform could be said to have begun by way of enactment of the 1996 Act, which gave effect to recommendations of the Law Reform Commission for a system of enduring powers of attorney. The system created by that legislation has much merit in that it allows persons, during the time they have intellectual capacity, to influence the decisions taken for them when they do not have such capacity. This has limited application in that it is of relevance only to those who have intellectual capacity and who cater for a future stage in their lives when they may not have such capacity. Nevertheless, the Powers of Attorney Act meets the needs of one category of people and the Law Reform Commission has recommended its wider use as a means of meeting particular needs.

While those concerned with the operation of the wards of court system have been working to introduce incremental changes, to modernise the system and to make it more open for wards themselves and their families, they acknowledge that comprehensive reform of the legislation is required. They have contributed their experience and expertise to the Law Reform Commission in the work it has been carrying out during the past three years and more on its report, Vulnerable Adults and the Law. The latter report recommends replacement of the current regime with a more open and incremental approach to people who need legal protection. As in the case of the Bill, the wards of court system for adults would be replaced by a guardianship system. It would operate on the basis that where a person has some capacity, it will recognise and work with that capacity, as well as being empowered to make certain decisions on behalf of a person where they are assessed as not having capacity to make that decision.

The Law Reform Commission's report contains 63 individual recommendations. A matter of some note is that many of the recommendations will require significant additional consideration and elaboration. In particular, the report recommends the enactment of new mental capacity legislation to define legal capacity, provide for assisted decision-making and provide appropriate regulatory mechanisms. It also proposes the development of codes of practice for a range of people dealing with vulnerable adults, including medical, health and social care staff, financial institutions and legal professionals. The definition of capacity put forward would follow a functional approach whereby an adult's legal capacity is assessed in respect of the particular decision to be made, at the time it is to be made.

The proposed guardianship board would consist of a High Court judge as chairperson, a registered medical doctor with expertise in the area and a health professional who has the expertise and training to assess functional capacity, such as an occupational therapist or clinical psychologist. The board would have power to make guardianship orders and appoint personal guardians where necessary.

It is also proposed to appoint personal guardians. These would be individuals of at least 18 years of age who have consented to becoming personal guardians. Before appointment, the guardianship board must be satisfied that the proposed personal guardian is a fit and proper person to act in that capacity. A personal guardian could, depending on the scope of the guardianship order, be empowered to make substitute decisions regarding the property, financial affairs and personal welfare of the adult who lacks capacity. Under the proposed guardianship regime, the High Court would be the appeal body from any decision made by the guardianship board and would have reserved to it certain major health care decisions such as non-therapeutic sterilisation, the withdrawal of artificial life-sustaining treatment and organ donation.

The report also recommends that an office of public guardian be established to take over many of the functions of the Office of Wards of Court. This office would offer wide-ranging advice, support and educational role for vulnerable people and their families. It would oversee and supervise personal guardians and attorneys operating under enduring powers of attorney and act as personal guardian in cases where there is no one else willing or able to act.

The report also proposes that the guardianship board should be empowered to make intervention orders where guardianship is not considered necessary. It makes further proposals regarding areas such as assisted decision-making, enduring powers of attorney and the drawing up of what it describes as "statutory principles governing decision-making on behalf of incapacitated adults".

The Government welcomes the report of the Law Reform Commission and the opportunity presented by the publication of the Bill to inform the debate on vulnerable adults and the law. Those operating in the area of wardship have also recognised the need for reform of the law relating to the protection of mentally incapacitated individuals and have welcomed the report. The Law Reform Commission's scheme of a mental capacity and guardianship Bill, which is replicated by the legislation put forward by the Senators, sets out the legislative changes as they apply to persons over 18 years of age. However, it is acknowledged in the report of the Law Reform Commission that further consideration of the effects of reform on persons under 18 would be required before any comprehensive legislative scheme is prepared. Account would also need to be taken of other matters including clarification of the legal basis for the wardship regime and recommendations for reform already proposed by the Office of Wards of Court.

The legal advice available to the Government is that some of the provisions in the Bill will require particularly careful examination with respect to constitutional protections. We must ensure that the various issues are fully analysed. For example, the sweeping powers conferred in section 8 on persons making decisions for others will have to be the subject of detailed deliberation. The authority of the High Court to vary the provisions of a will, albeit in exceptional circumstances, will also need to be reconciled with the constitutional protection of the right to private property.

At the practical level, experience gained from the operation of the personal advocacy service provided for in the recent Citizens Information Act will also be valuable. Under the Citizens Information Act, personal advocates will be appointed to provide a range of services to qualified persons with disabilities, including assisting, supporting and representing the qualified person to apply for and obtain a social service; pursuing any right of review or appeal on behalf of the qualifying person; providing support and training to the qualifying person and any member of his or her family, a carer or any other person representing the interests of the qualifying person; entering any place that provides day care, residential care or training for the qualifying person for the purpose of representing his or her interests; and, subject to the requirements of data protection legislation, accessing information, attending meetings or consultations and identifying any person who may assist the qualifying person for the purpose of performing his or her duties.

I am conscious of the challenges and pitfalls with legislative reform in the area of legal capacity, and good practical experience of the operation of the advocacy system will help in the development of proposals tailored to needs. While not directed towards legal capacity of persons with intellectual disability, the advocacy system will be of assistance to us in considering what reform is needed with regard to legal capacity.

The recent passing of the Citizen's Information Act will see Comhairle rebranded as the Citizens Information Board and there will be significant increases to the advocacy functions it supports. This will allow qualifying persons to obtain the assistance of a personal advocate in accessing social services. A personal advocate may also provide support and training to a qualifying person, his or her carer, or family members. This legislation is another step in helping people, especially those with disabilities, to access the social services many of us take for granted and to give them a higher level of formalised support in so doing.

The Disability Act 2005, a key part of the national disability strategy put in place by this Government, underpins the equal participation of people with disabilities in society. The importance of the Disability Act is that it establishes an independent assessment of need; a service statement — the content of which will have regard to resource availability, eligibility and other factors; and redress and enforcement systems. The Disability Act complements proposals for reform in the area of legal capacity of persons with intellectual disability and will also provide valuable experience to inform reform proposals.

Our legislative and budgetary programmes have seen significant enhancements to the supports available to several classes of vulnerable persons, and further reform, whether in the exact terms of the Law Reform Commission's recommendations or otherwise, will build on the foundations and the work done so far. The principles underpinning the legislation to date, of facilitating capacity and taking account of a person's wishes where these can be determined, will inform further legislation in the area.

Legislation must give more control and choice to persons who have an intellectual disability and provide more protection for people with intellectual disabilities and their families, carers and service providers. The best interest of the person who lacks capacity must prevail. Achieving these objectives, however, is not an easy task. The Government is committed to legislating in this area and has given its approval for the preparation of comprehensive proposals by my Department. The Department is now seized of that remit. In developing the legislation it will take into account the Law Reform Commission's scheme of a Bill. It will be informed by debate on the Bill and will consider the most effective and efficient model to replace the wards of court system.

A regulatory impact assessment will, in accordance with Government guidelines, form part of the process, and there will be necessary consultation with the Courts Service, the Judiciary and all relevant interests. The House will appreciate that since significant Exchequer funding of the system, its staffing and its accommodation will be involved, it is appropriate that the Government should bring forward its own detailed legislative proposals. I assure the Senators that this Bill will be left on the Order Paper, if that is their wish, and will be incorporated in the Bill that will be brought forward as quickly as possible by the Government.