Brendan Ryan (Labour)

They will not be used to introducing Private Members' business and it might be a good place to start. They have not been here for a while.

Everybody has a story that illustrates the difficulties that arise in regard to the circumstances of vulnerable adults. Many of us have an immediate or extended family member who is in that area of capacity where one knows he or she is unable to make major decisions. The idea of a ward of court system, however, seems extraordinarily dramatic and draconian.

I had an acquaintance who came to me looking for support after a road accident in which he sustained a head injury that had the unfortunate effect of making him quite paranoid. The processing of his claim through the courts was tedious for this reason and the other side began to suggest he was fabricating his injury. However, I saw the documentary evidence from witnesses and medical staff which supported his case. The other party ultimately persuaded a court to declare him a ward of court even though he was the plaintiff in a civil case. He absconded to England to escape what he believed was his imminent incarceration in a psychiatric hospital. However, a prominent British politician assisted him in sorting out the case. He was eventually awarded substantial damages in the Supreme Court three weeks before he died from cancer in 1993. He died vindicated and that was a wonderful achievement given that he suffered from this particular paranoia.

I had only a small role in this case but it concerned me that this person was declared a ward of court without his knowledge. I am not sure of all the details but I am certain that the sensitivity which ought to have applied in this process was not evident. The paranoia this man already suffered as a result of his accident was multiplied a hundredfold by this action, which he saw as the activity of outside conspirators.

There is anecdotal evidence of the difficulties that arise when people are declared wards of court. I recall speaking to a woman whose son was awarded an enormous amount of damages because of an injury at birth or something like that. The son was a ward of court and his mother assumed the money was assigned to support him. She encountered major difficulties with the ward of court system, however, in securing its agreement to undertake necessary modifications to the family home. She endured a long and well publicised battle. It seemed the instinct or perhaps legal obligation of the individuals involved in the wardship system was to challenge and question every proposal she made. I have heard of people who face challenges from the wardship system on such matters as the purchase of a pair of socks. Members who are familiar with my family situation will know about whom I am speaking.

This is not right and would not be so no matter what language is used. Given that we now understand the spectrum of abilities, it is even less so. I welcome the erudite treatment of capacity in the report of the Law Reform Commission. I welcome the reference to enduring power of attorney, which was drawn to my attention by my clear-thinking mother who thinks it a practical way of dealing with her future situation. I was disturbed to discover that enduring power of attorney did not, and still does not, apply to major health decisions, which creates a grey area. I am grateful to the Law Reform Commission for drawing that to our attention.

The report stresses the need to recognise that people of limited capacity are, nevertheless, very human, which is only mentioned in passing in the Bill. They have all the needs of a human being, and a sexuality, and an unintended consequence of earlier legislation has been that any sexual activity between two people of limited capacity is illegal. I find that somewhat problematic, though I fully appreciate sensitivities about complications. However, to throw up a cordon sanitaire of celibacy around anybody deemed to be of limited capacity is not very human. We have imposed a law on such people which is based on marriage and it is a difficult area, whatever our morals. It will not be resolved by making a decision that is simple for us. We make laws for people of diminished capacity and essentially criminalise them for something they do freely but with limited capacity. I do not suggest the answer is easy.