Seanad debates
Wednesday, 21 February 2007
Mental Capacity and Guardianship Bill 2007: Second Stage
5:00 pm
Mary Henry (Independent)
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I move: "That the Bill be now read a Second Time."
In the recent past, legislation has been brought before the Houses of the Oireachtas to repeal statutes which are no longer relevant to life in Ireland. This was a worthy exercise. I have brought forward this Bill in the hope it will lead to the repeal of the Lunacy Regulation (Ireland) Act 1871 and its replacement by this proposed legislation and to the repeal of the Marriage of Lunatics Act 1811.
The Bill addresses the needs and rights of older and vulnerable people. The Bill is based totally on the draft scheme for a Bill on mental capacity and guardianship published by the Law Reform Commission in 2006. I recognise the presence of the permanent law reform commissioner, Ms Patricia Rickard-Clarke in the Gallery. I wish to recognise the work the commission did on the law affecting older people with physical, mental and learning disabilities and the law as it affects older people. The commission published a consultation paper on the law and the elderly in 2003 and the many responses to it were taken into account in its report on vulnerable adults and the law in which the draft Bill to which I referred is an appendix.
In May 2005 the commission published its consultation paper, Vulnerable Adults and the Law: Capacity. While the focus of the consultation paper on the law and the elderly was to make recommendations concerning older people, the commission acknowledged these recommendations were also relevant to other adults with limited decision-making abilities and to adults who otherwise needed protection. There is no universally accepted definition of intellectual disability but one definition which is quoted in the report is the presence of a significantly reduced ability to understand new and complex information and to learn new skills — impaired intelligence — with a reduced ability to cope independently — impaired social functioning. The spectrum of intellectual disability is wide and extends from people with mild learning difficulties to those with profound difficulties. Some adults with intellectual disability lead independent lives within the community while others need intensive care and support. Decision making capacity may vary but the opportunity should be given to them to make or participate in making, with help, decisions relevant to their lives. That is the purpose of the Bill.
People with mental illness such as depression, bipolar disorder and schizophrenia may temporarily need help. When ill they make decisions they would not make when well. Those with acquired brain injury, due to trauma, stroke and brain surgery, or with rarer conditions, such as locked-in syndrome, were also considered by the commission. Under the current law those over 18 years of age are considered to have capacity. If it is shown that a person lacks capacity the current law sometimes has the effect of completely changing the person's status, from a person with capacity to a person without capacity. The example given by the commission is the wards of court system that, the commission suggests, should be replaced by a guardianship system.
Before addressing the content of the Bill I wish to refer to the issue of capacity. Paragraph 1.61 of the report states:
Current Irish law begins with a presumption of capacity. This maybe displaced by evidence establishing that a person lacks capacity. At present, however, there is no generally applicable definition of capacity at common law or in statute.
The commission examined three models of capacity. The outcome approach is used by many doctors and means that if one agrees with the doctor's decisions one has capacity and if not, the doctor advises that capacity is absent. The commission concluded that the outcome approach penalises individuality and demands conformity at the expense of personal autonomy. In other words, it is important not to fight with one's doctor.
The status approach was also dismissed by the commission because it was considered to be based on an across the board assessment of a person's capacity rather than the person's capacity in respect of the particular decision. An example of this is the denial of capacity to a person in a long-stay psychiatric ward even when the person was well.
The commission decided the functional approach was best, considering capacity on an issue specific basis. An all or nothing approach should not be adopted. This commonsense approach appealed to me and for this reason I ask the Minister of State to consider it.
Part 1 is self-explanatory, concerning title, interpretation and expenses. Section 4, regarding the guiding principles of the Bill, exemplifies the commonsense approach. It states:
Every person concerned in the implementation of this Act or in making any decision or Order under this Act shall have regard to the following principles:
(a) No intervention is to take place unless it is necessary having regard to the needs and individual circumstances of the person including whether the person is likely to increase or regain capacity;
(b) Any intervention must be the method of achieving the purpose of the intervention which is least restrictive of the person's freedom;
(c) Account must be taken of the person's past and present wishes where they are ascertainable;
(d) Account must be taken of the views of the person's relatives, primary carer, the person with whom he or she resides, any person named as someone who should be consulted and any other person with an interest in the welfare of the person or the proposed decision where these views have been made known to the person responsible;
(e) Due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.
Section 5 is self-explanatory and concerns the age of majority and the repeal of the 1871 Act.
Part 2 deals with capacity and the functional approach. Capacity, rather than incapacity, is the term deliberately used. Sections 8(3) and 8(4) concern the carers working to do their best for the person. They should not have liability for expenses. Section 9 deals with the situation where informal decision making will no longer do and the guardianship board needs to be set up and a personal guardian appointed. Section 10 covers everyday expenses incurred for a person's welfare. Section 11 deals with wills and how these may have to be changed in exceptional circumstances. Section 12 concerns consent and capacity of persons in specific circumstances such as in the context of the common law, capacity and consent to marriage, consent to divorce, consent to adoption, and voting at an election for any public office or at a referendum.
Part 3 sets up the guardianship board, deals with the appointment of members and describes the functions and related powers of the board and part 4 does likewise for personal guardians. Part 5 follows commission recommendations that a public guardian, with a supervisory role in respect of personal guardians, should be appointed by the guardianship board. It also implements the recommendation that the public guardian should have an educative role in raising awareness of capacity issues among the general public. Codes of practice are explained.
The commission recommended a sixth part to the Bill, which is not included. This would incorporate specific amendments to the Powers of Attorney Act 1996 concerning enduring powers of attorney. These are described in the report as an excellent way to preserve the autonomy of the decision maker in setting out his or her choice of an alternative decision maker in the event of loss of capacity. The commission recommends that the primary legislative regime governing enduring powers of attorney be included in this Bill on mental capacity. This area needs further discussion.
I hope the Minister of State accepts this commonsense Bill. The status of older people and those with disabilities is considered more carefully now than it was in decades past. They are entitled to have as much control over their lives as is possible and this is the view of society at present.
Feargal Quinn (Independent)
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I second the motion and welcome the concept of the Bill. It will update the legislation on incapacity. I appreciate Senator Henry asking me to second this motion because I had to study the subject. This opened my eyes to the work undertaken by the Law Reform Commission, which initiated many of the ideas in the Bill. I welcome Ms Patricia T. Rickard-Clarke, who is present in the Distinguished Visitors' Gallery.
I was stunned when I first read this legislation. I was surprised by two aspects of existing law, language and age. The Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811 are still in force. This language comes from another era and is unacceptable in modern days. It is similar to bear baiting, cock fighting and public executions. This Bill aims to change the attitude to, and decision making for, people who do not have full mental capacity. This involves moving from a status approach which referred to people as mad, to use the word applied in those days, to a functional approach which acknowledges levels of incapacity. The approach used to be black and white, defining someone as sane or not.
We all know elderly people who have reached a stage at which they live a normal everyday life but whose mental capacities are slipping, either in respect of their memories or of repeating themselves. In the old days those people would have been regarded as insane. The crucial aim of this legislation is to propose that there are levels of incapacity, especially among the elderly. Senator Henry used the word "dignity" and it is used in the Bill where the individual's human rights are uppermost.
I refer to the existing legislation as belonging in the past because it is so unsuitable today. We all know of people who do not have 100% mental capacity. I met a former Member of this House recently who is in his 90s and has 100% of his capacity so let us not assume that everyone's capacity diminishes as they get older. To a large extent, however, older people lose mental capacity and memory and because of that, in the past they were ostracised.
I was jolted on reading the Bill to discover that I had probably broken the law. Some years ago a couple asked me to become an executor of their will. The man died and his widow began to have some difficulty such that she was not able to make decisions for herself. I arranged for her to go into a nursing home and later for her house to be sold. I did that without any authority. The lady should have been made a ward of court and it may well have been that I could have influenced the President of the High Court. I did not realise that I was acting without the legal authority to do so. The situation lasted for some time. There must be many others like me who did not know that the law provides that if one loses one's mental capacity the President of the High Court makes one a ward of court and he or she becomes one's guardian. That lady was not by any means mad or a lunatic, in the terms of the 1811 legislation. She was losing some capacity and lived a good life for the remainder of her years.
Although a small portion of one's faculties is harmed, one loses all of one's rights when the President of the High Court makes one a ward of court. This Bill seeks to replace that system with a new one that includes the guardianship board, the health care group, the personal guardian and the office of the public guardian. This system will consider all aspects of the individual and introduce the least intervention possible. It will help those guardians, probably family members, to make and implement decisions.
The guardian, for example, might take into account the fact that someone early in life has said that in the event of becoming ill, he or she wants to stay in his or her home rather than go to a nursing home if he or she has the facilities to do so. The same is true of someone who says that he or she does not want to have a hip replacement in the event that is suggested. The guardian can help to make decisions in these situations. For a simpler matter such as the flu injection there would not be a need for this help or decision making but the law needs changing. The European Union forced the British to change their legislation because it had not been updated quickly enough. We may not be in that situation yet but we soon will be. We cannot possibly continue to act according to legislation passed in 1811 and 1871.
This Bill is worthy of Government support. I hope the Government will take it into account, ideally by accepting and passing it as quickly as possible. It is the right thing to do and we should not be forced into doing it. If we do not pass this Bill, we will rob the older people who need this legislation of their dignity. I urge the Minister of State to accept the Bill.
Frank Fahey (Galway West, Fianna Fail)
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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.
Maurice Cummins (Fine Gael)
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I compliment the Law Reform Commission on its various publications dealing with this subject and I pay tribute to Senator Henry for bringing this Bill before the House. I strongly support the Mental Capacity and Guardianship Bill, which is a long overdue replacement for the outdated wards of court system currently in place. We need not look beyond the title of the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811 to recognise that any Act incorporating the term "lunacy" has no place in 21st century Ireland and is in definite need of attention.
The Bill is an important step in providing protection and certainty to vulnerable adults and their families. It is estimated that more than 2,000 people in Ireland are wards of court. Under current legislation, these people lose complete control over all aspects of their financial and personal life. They are stripped of many of their basic human rights and live life devoid of the level of dignity and equality they deserve. The Bill proposes the introduction of a new, more functional way of considering the capacity of an individual to make financial, personal and health care decisions. Rather than focusing on the lack of capacity an individual might have, the Bill proposes that unless the contrary is established, every individual will be presumed to have full capacity to make a decision affecting him or her.
This is a very important proposal as obviously the capacity of an individual to make decisions varies significantly from person to person. Some individuals covered by this legislation may be suffering from mental illness, others may have sustained a brain injury following an accident and others are elderly people who have lost certain mental faculties as part of old age. Some of these people may be able to make minor decisions like running a small bank account but may not be able to take care of more complicated financial affairs. Where an individual is capable of making decisions relating to his or her life, it is important we support their ability to do so and provide the person concerned with the quality of life and dignity they deserve.
The introduction of a guardianship system consisting of a guardianship board of three people is a positive proposal that would support this new way of looking at capacity. The guardianship board would consider the capacity of the individual concerned, appoint a personal guardian where necessary and monitor the required level of involvement of this guardian in an individual's personal, health and financial affairs. This is a fair and practical system which provides for flexibility as the nature of a person's capacity changes over time. It is a system that would definitely support the rights of a vulnerable individual.
An important aspect of the Bill relates to the health of the individuals covered by this legislation. It is archaic that, previously, it was entirely possible that a vulnerable person considered a ward of court could have been subjected to major medical interventions such as sterilisation without their consultation or consent. This Bill rightly proposes that decisions relating to non-therapeutic sterilisation, the withdrawal of life sustaining treatment and organ donation will require a decision from the High Court.
The subject of mental health has been given substantial attention by the Fine Gael Party. Fine Gael and the Labour Party have published a policy document setting out our priorities in this area. Reaching Recovery was published last September and includes a number of commitments by Fine Gael and the Labour Party on what we will do when elected to Government to improve the lives of the many people who suffer from mental illness. Although mental health is central to our well-being, the treatment of mental illness and the promotion of good mental health do not receive the same attention, investment and resources as physical illness. Fine Gael and Labour recognise that the mental health services have been neglected and under-funded and are resolved to change this.
We will build and foster positive mental health throughout the community and provide accessible, community-based, fully staffed, multidisciplined services for people with mental illness. The provision of these services will be brought at least on a par with the general health services in hospital and community services. To build that positivity, we must deal with the issue of guardianship for persons of diminished capacity. That is why this Bill is so important. Following the report of the Law Reform Commission in this area, it is disappointing the Government has not seen fit to bring forward any proposals to deal with the issues concerned. For example, the simple issue of mental capacity remains improperly defined in the law. Much of the existing legislation uses out-dated or inappropriate language. There is no single person or body, independent of the Government that can make guardianship orders, intervention orders, or appoint personal guardians. That is why I particularly welcome the proposed establishment of a guardianship board in Part 3.
Personal guardians are an innovative instrument that can be used to help and guide persons who suffer from a mental disability. I am aware of many families who find themselves in a position where the making of a guardianship order would solve many of their problems and concerns. Furthermore, Senator Henry's proposed public guardian instrument, established in Part 5, is a reassuring safeguard against any abuse by an unscrupulous person who becomes a personal guardian. These safeguards are paramount if families and friends are to have true faith in the system outlined in the Bill and to benefit from the reassurance that they provide.
The Fine Gael Party supports the Bill's proposed structures. We have also made a specific commitment to put in place multidisciplinary community mental health teams, therefore, reducing the need for inpatient care and to close those psychiatric institutions which are inappropriate for their purpose and undermine the dignity of their patients.
Measures like these, in tandem with the provisions of Senator Henry's sensitive and progressive legislation, will allow us to construct a society in which mental health is treated with dignity, compassion, but with clear guidelines and clarity for family members and next-of-kin.
I commend the Bill to the House and I hope the Government will accept it. The Minister of State claims the Government will introduce similar legislation but God only knows when it will be published. It would be appropriate for the Government to accept this worthy Bill.
6:00 pm
Jim Walsh (Fianna Fail)
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I commend Senator Henry for pioneering this legislation. She has on many occasions brought the issue of mental health to the forefront in an enlightened way. It is to our benefit that she has taken an initiative in this area. As she stated the reform of the law on legal capacity is overdue. I am glad the Minister of State concurs with the Bill.
The Law Reform Commission recommended comprehensive reforms in this area and which embrace a wide range of matters such as mental capacity, powers of attorney and testimony capacity. It recommended replacing the wards of court arrangements for incapacitated adults in its entirety. The report, published on 18 December 2006, sets out how the law should approach the concept of capacity to make decisions and what structures are needed to support vulnerable persons when it comes to make decisions. There were 63 wide-ranging recommendations, particularly for the provision of new guardianship and decision-making arrangements for people whose decision-making capacity may be temporarily or permanently impaired. It includes a draft scheme of legislation on which I believe Senator Henry's Bill has drawn.
The wards of court system is headed by the President of the High Court with the support of the office and registrar of wards of courts. Approximately 2,000 persons are in court wardship, the majority of whom are adults. It caters for minors who may not have mental capacity problems. The purpose of wardship is to protect the person and the property and to manage it for the benefit of his or her dependants. The President of the High Court has regard to the wishes of the ward and his or her family. It is important this is retained in a new system. Only in exceptional circumstances does the president deviate from those wishes. It covers such matters as the sale of assets of the ward, suitability of accommodation, power of the ward's fund to purchase suitable accommodation, payment of allowances to a ward or dependant relatives, and decisions with regard to health care. It operates under a committee of the person or estate of the ward which in turn acts under the directions of the court.
The basis for the wardship system is contained in the Lunacy Regulation (Ireland) Act 1871. A major difficulty is the terminology in that title which contains an element of stigma and its pejorative meaning is unacceptable. It also colours the views of relatives and third parties. While it is archaic in nature, it has operated for great benefit for the protection of the incapacitated individuals. The system must be modernised. Senators Henry and Quinn referred to the dignity of the individual, which should be a guiding influence in making legislation.
The Bill will change the current system with two statutory agencies, a guardianship board and an office of public guardian. The Bill sets out limitations on the liabilities for persons who make decisions. The Minister of State drew attention to section 8(4). It states:
Where an act to which this section applies involves expenditure, it shall be lawful for the individual to apply money in the other person's possession for meeting the expenditure and if the expenditure is borne by the individual for the other person, it shall be lawful for the individual to reimburse himself or herself out of money in the other person's possession or to be otherwise indemnified by the other person.
Undoubtedly that would be an essential component and responsibility. However, where cash and assets are involved, secure safeguards need to be in place. Under the current system, people, who may not have been of full capacity, were deprived of assets by unscrupulous relatives. The section needs to be tightened.
Many sections set out guiding principles which establish an incremental approach to an intervention under the Bill, limit the scope of the Bill to adults, establish an assumption of capacity until the contrary is established and define capacity for that purpose. The establishing of assumption of capacity until the contrary is found is an important aspect of this legislation. Intervention should take place only where it is absolutely necessary.
Reading the Law Reform Commission's report, I was impressed to discover the inclusion in a Scottish Bill of five general principles in this regard. This issue goes to the heart of State involvement in the lives of citizens. I am firmly of the view that the State should be minimalist in its interference in people's lives. This is an issue that has arisen in the context of the debate on the constitutional amendment on children. I contend that the State should intervene only when it is absolutely essential to do so and should not place itself in the position of parents or others who make decisions in regard to children.
The Law Reform Commission report states:
In Scotland section 5 of the Adults with Incapacity (Scotland) Act 2000 sets out five general principles which govern all interventions in affairs of an adult under that legislation. The statutory principles which are broader than a "best interests" test aim to ensure that the adult is consulted, as well as anyone else with an interest in the adult. The relevant principles which are to be respected can be summarised as:
There is to be no intervention unless the intervention will benefit the adult and that benefit cannot reasonably be achieved by other means.
The intervention must be the option which is least restrictive of the person's freedom, consistent with the purpose of the intervention.
In deciding on any intervention, account must be taken of the adult's past and present wishes, beliefs, values and feelings so far as they can be ascertained.
Account must be taken of the views of the adult and relevant others (including the nearest relative and primary carer) where it is reasonable and practical to do so.
Persons holding powers of attorney or acting as guardians must encourage the adult to use existing skills and to develop new skills concerning his or her property, financial affairs or personal welfare.
There is much wisdom in these five general principles. They should be applied in the case of vulnerable adults. Moreover, in all cases where the State is deemed to have responsibility to intervene, it would be valuable to apply them as a litmus test for how and when it should intervene.
I compliment Senator Henry on her initiative in bringing forward this Bill. I note the Minister of State's comment that if the matter is not pressed, the Bill may remain on the Order Paper. More interdepartmental work is required to refine aspects of it and to add to its general content.
Brendan Ryan (Labour)
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Cuirim fáilte roimh an reachtaíocht seo agus roimh an Aire Stáit agus an méid dearfach a bhí le rá aige. He could have gone further but I will leave it to Senator Henry to deal with that.
I am in and out of this House for a long time; Members opposite may consider it too long a time. It is 20 years since I first heard a Minister acknowledge the existence of offensive language in legislation. Words like "imbecile" and "lunatic" are inappropriate. There are others I cannot recall and which I might not wish to put on the record in any case. If I were to offer a crusading Minister a single action to take, it would be to go through all the legislation and remove those terms once and for all. They are profoundly offensive. They are also inaccurate in many cases because they presume the opposite of what the Law Reform Commission report makes clear is the case, that is, they presume it is possible to make an absolute distinction between people who have capacity and those who do not. The reality is that there is a spectrum rather than a single threshold. Ascertaining a person's position on that spectrum is where difficulties arise.
One of the benefits of the diligence of people such as Senator Henry is that lazy people like me are forced to read reports we always intended to read but never managed. I am a reasonably good reader but there is a wonderful pile of Law Reform Commission reports sitting on my desk. Perhaps others Members are more diligent but I doubt it. We hear about these reports in the news but tend not to read the reports themselves.
Every Law Reform Commission report I have read has impressed me. They are elegantly written, comprehensible to mere lay people like ourselves and, in cases where they offer draft legislation, do much of the work we should be doing. I compliment Senator Henry on undertaking the obvious course well in introducing the Bill that the Law Reform Commission drafted. It is a route that any of us who survive the oncoming deluge might consider in future. Members on the other side of the House who will be on this side after the election might be particularly interested in such an approach.
Brendan Ryan (Labour)
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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.
Brendan Ryan (Labour)
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It is. Many people, however, including many women, are exploited in sexual relations but that is not of itself illegal. I chose this area on which to speak because it exemplifies how difficult the issue is to resolve.
The Law Reform Commission can be extraordinarily blunt when it wants to be. It describes the criteria for bringing a person into wardship as archaic and complex. It states, for example:
The paternalistic concepts which are the heart of the wardship system sit somewhat uncomfortably with the more recent social and human rights models...Aspects of the wardship procedure do not contain adequate procedural safeguards...The wardship inquiry would appear to be more inquisitorial than adversarial in nature and the rules of evidence are therefore relaxed.
This issue does not deserve adversarial comment or criticism.
Why is everything so slow? Two consultation reports have been published, in 2003 and 2005. We knew this was coming and agree it is important, but why is the Department only now beginning to think about it? Is it not possible for the Government to recognise that the Law Reform Commission is working on something important and to work in parallel so that it can respond immediately to the issues? The Opposition would be nothing but helpful in producing reforming legislation and getting it through the Oireachtas quickly to remove all the anomalies in the current legislation, especially the language that is such a feature of it.
Camillus Glynn (Fianna Fail)
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I welcome the Minister of State to the House and commend Senator Henry for bringing forward this Bill. Senator Ryan spoke about the terminology of the current Act, which dates from 1871. It should never have been acceptable but it certainly is not acceptable in 2007.
Having served in the psychiatric services I have come into contact with many wards of court. I will not repeat what other Senators said but I am pleased with the conclusions of the report. I am delighted the Minister is bringing forward legislation so that we all have the opportunity to add to or take from its proposals to ensure the optimum benefit accrues to the people whom we are trying to look after. I welcome the appointment of a suitable personal guardian who will be trained and will work under a regime of care practice which will be reviewed on an ongoing basis. The guardian will work with the people concerned to ensure they get the optimum benefit from their estate.
I witnessed a number of situations which would make us all frown, in which vulnerable people were exploited prior to coming into the care of the psychiatric services, which is very regrettable. The Minister of State said the office would offer wide-ranging advice, support and an 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. That is a very important provision.
This is overdue legislation and I agree with what colleagues on all sides on the House have said. It is time this horrible legislation was repealed because some of the terminology evokes revulsion. It belongs to another era like the ice age, or a horror film, and I would welcome anything that replaced it. I am delighted the Minister is present and I listened carefully to what he said.
I commend Senator Henry for bringing forward the Bill, which is consistent with the report of the Law Reform Commission, and look forward to the legislation coming before this House. I hope both Senator Ryan and I are around to give it due consideration, along with Senators Norris, Henry and Jim Walsh.
Camillus Glynn (Fianna Fail)
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Some of us might be elevated to higher office in the interim.
David Norris (Independent)
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I agree with Senator Glynn on most things but I do not think Senator Henry will return to the Seanad because she does not intend to stand for election.
David Norris (Independent)
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We will be diminished by her absence. We have not always seen eye to eye but she has offered something important to this House which will be missed. I refer not only to her care and concern for vulnerable people, which she has displayed in producing this Bill, but also to her medical expertise, which will be lacking on the backbenches. One can never tell, however, who will pop up at the last minute in an election but Senator Henry's decision not to stand is regrettable and I commend her on her initiative in presenting this Bill, the outline of which was drawn by the Law Reform Commission. That is not to be regretted, Senator Henry should be complimented on it because it shows a positive relationship between the Law Reform Commission and us as legislators. This is exactly what the Seanad should be about and it is marvellous that the Minister has indicated that the essential principles of the Bill have been accepted. We are generating more legislation than ever on this side of the House. I have a Bill on the Order Paper, although obviously it will not be taken and a similar Bill is being discussed in the other House tonight, but if I get back, I certainly will push it like blazes.
I concur with my friend Senator Ryan who, rather engagingly, confessed that like everyone else there are connections with wards of court in his family. My family tree is liberally festooned with imbeciles, idiots, lunatics and wards of court. I rather relished that old fashioned terminology in some cases because I remember how embarrassing it was for the family when, for example, I discovered a legal document belonging to an ancient relative of mine called Anthony Gale. My aunt tried to possess herself of it and destroy it because it noted the "said Anthony Gale, being a lunatic and declared ward of court". I rejoiced in that, thinking it to be absolutely charming.
I had another relative, a Hungarian aunt by marriage whose husband was tragically killed in a motoring accident which left her traumatised. She became very difficult and was made a ward of court. That was possibly in her best interest but she was someone of such strong personality and her mental condition was understandable because she came from an old Hungarian family that was thrown all over the place because of the collapse of the monarchy and the advent of communism. Communism drove her mad and she saw everything as a communist plot. I arranged for her to have a cataract operation. She agreed to have it and I pulled all sorts of strings to move her up the queue and at the door of the operating theatre, she said, "No, I will not do this, it is a communist plot." It obviously was not but she had convinced herself that the commies had infiltrated St. Vincent's Hospital and were going to take out her eyes. She was, however, well capable of making all kinds of other decisions. That is why I like the idea in the Bill of a gradation of capacity.
Being serious, for people today, whatever about the 18th century, it is obnoxious to throw around phrases such as lunatics, idiots, imbeciles, morons and so on. The terms have become so outdated that they have become ludicrous and do not reflect the human situation.
The Law Reform Commission report usefully divides the situation of vulnerable adults into two sections, with the first being people who by virtue of age alone are rendered deficient in terms of mental capacity. That will happen increasingly because the population is ageing and life expectancy is increasing all the time, as is the incidence of Alzheimer's disease, which is generally associated with age. There is the other perhaps even more tragic circumstance where young, fit people, either through car accidents or sports injuries are rendered with some degree of intellectual disability. That is certainly a great difficulty and that is why it is important the present provisions be replaced by the guardianship system and I compliment Senator Henry on this.
I like the idea of a functional approach, that people should be judged on their capacity, with an individually tailored approach. We will not just say that a person has Alzheimer's and therefore nothing can be done, we will assess his or her capacity and respect it.
If the Minister is introducing legislation, he might consider something that is not in Senator Henry's Bill — regulation by IFSRA of these equity release schemes. I have been bellyaching about the packages available and the way they are advertised on the radio. It is heartless. They suggest at the age of 90 a person can flog off half of his or her house and skip off to Bermuda and have a bloody good time with lots of cocktails.
David Norris (Independent)
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It sounds good but it is not, life is not like that. Sometimes people apply for these without realising all the implications. Someone mentioned that there was a difficulty with a ward of court who needed alterations to her house. That is the same as taking up one of these equity release schemes. It gives a bank equity and its permission is needed to install a chair lift or similar facility. The bank may refuse because it would reduce the value of the house. People must be protected from that, particularly some older people who are easily led and a bit sentimental.
The Bill covers the question of consent. As the law stands, dentists, doctors and surgeons get consent forms signed by patients but they have no legal force. Technically, a dentist or a doctor who operates on someone of diminished capacity could in law be held to be committing an assault because those consent forms have no validity. As I understand it, this situation will be rectified by the current Bill, another good reason for commending it to the House.
The Minister indicated that although he will not take the Bill en bloc, it will remain on the Order Paper. Nothing will be done before the election and, alas, Senator Henry will not be here to propose the legislation after the election but if no one else will, I will push it, as will Senator O'Toole, who seconded it.
Brendan Ryan (Labour)
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So Senator Norris will definitely be here?
David Norris (Independent)
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No one can say for definite that we will be here. I remember very well what happened to you, honey, when you came along with a poster stating, "When shall we three meet again?" and you met your fate. I will not tempt providence.
David Norris (Independent)
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I am not a bit gleeful. To adapt Oscar Wilde, and I am sure he thought of saying this if he did not say it, I have never understand the idea of tempting providence because it is older than the whole bloody lot of us put together and should be able to resist temptation. I will not bank on providence being able to resist temptation in my case because, over the years, I have been a deliciously naughty boy and providence might decide it is about time I got a smack so I refuse to tempt providence in the way Senator Ryan so unwisely did. I wish him well and hope that on this occasion he survives.
This is a positive evening because we have been ad idem on the need for the Bill and the Government in succeeding years will introduce legislation along these lines. It now has the endorsement of the House and Senators Henry and O'Toole have done a good day's work for Seanad Éireann.
Mary O'Rourke (Fianna Fail)
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I wish to support the Bill. I have not read it fully but I listened to some of the debate and I believe Senator Henry has brought credit to the Seanad by introducing this Bill; she has talked about it for a long time. That a woman has introduced it is interesting because I would not find delightful at all the words which Senator Norris mentioned. They were an affront to sensibilities and would not skip lightly off the tongue and in the Bill Senator Henry seeks to address this.
Senator Norris mentioned Bills put down by the Independent Members but Senator Brian Hayes has a Bill on the Order Paper. From this side Senator Leyden successfully piloted a Bill on wills, which has passed all Stages in the Seanad. This Seanad has had a pretty good record of introducing Private Members' Bills. As well as being a scrutinising and reviewing Chamber, our protocol allows us to introduce Bills. I am delighted the Minister of State has agreed to accept the Bill. I commend Senator Henry on what she has done. Senator Norris spoke of her not returning. I presume that is freedom of will.
Mary O'Rourke (Fianna Fail)
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She has made a very good valediction to the House by introducing the Bill and having it accepted. I congratulate her.
Labhrás Ó Murchú (Fianna Fail)
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I came in to pay tribute to Senator Henry. I had listened to her contribution earlier. I hope she will not mind me saying she is a remarkable lady. The work she has put into the Bill is amazing. Not only her medical background but also the social conscience she has always demonstrated here have come across clearly. It is probably not an area that many would feel attracts much political kudos as it deals with probably the most vulnerable people in society. It is amazing that the legislation governing those areas and the accompanying language is so archaic. It is time we came into modern days and not simply talk about looking after those who cannot look after themselves, but also ensure those who do so are legally covered.
Senator Quinn quoted from personal experience having been asked to be executor of a will. He pointed out that some of the work he did may not have had any authority to back it up. While we did not question that in the past, we are now living in a different age. Obviously any one who takes the choice to help people is vulnerable if the law does not provide cover. I do not believe any of this motivated Senator Henry. Those who advised and helped her in many instances work at the coalface and wanted to bring it to the Legislative Assembly to ensure there was a legislative voice to cover the types of issues and people mentioned.
I pay tribute to Senator Henry. There was considerable sadness when Senator Norris said that although the Bill will remain on the Order Paper, Senator Henry may not be here to deal with it. That was the saddest part of all because the Senator has made such a contribution to the Seanad. This will be another monument to her and I compliment her on the work she has put in and the balanced way she presented it to the House. Above all we know the motivation she had in introducing it. I congratulate her.
Mary Henry (Independent)
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I am quite overcome with the words of praise I have had tonight, which while undeserved are very welcome. I accept the suggestion of the Minister of State that the Bill remain on the Order Paper, which will send a timely reminder to everyone about it. The Seanad is a great place to introduce such Bills, which are not party political. We need to get around to such legislation at some time. It is unfortunate that this matter has gone on for so long, but here we are with it now. I would like to see it addressed with a certain sense of urgency, particularly as it affects older people. Earlier today we had a debate on health service reform and I believe everyone supported the Minister for Health and Children in her desire to keep older people at home for as long as possible if that is what they want. This matter will require some working out and we need to be in a position to know what they want to do and what their carers want. It is important to ensure that the carers are legally covered. Senator Quinn spoke about what he did, which eventually may have been completely outside the law. Families could make challenges when others are doing the very best they can for a person. It is important particularly from the point of view of older people to get the legislation enacted as soon as we can.
Perhaps I read too much Dickens. When I read about people being made wards of court in chancery I felt worse than ever. As several Senators pointed out, frequently after people have been made wards of court, particularly following the award of big sums of money in damages for accidents, those who need to care for them on a day-by-day basis have had an extremely difficult time in dealing with things. I remember a case similar to the one mentioned by Senator Ryan in which a child was awarded damages. When the child was only seven, eight or nine, the carer was still having trouble getting money to care for the child.
When the Powers of Attorney Bill was being discussed in the Seanad, I tried to provide more flexibility regarding health care. However, the then Minister, Mr. Mervyn Taylor, felt he could not do so. He allowed for more latitude during its passage through the Dáil to take into account personal wishes. Older people are terribly worried about health care. They often say that they want no artificial resuscitation or other actions. However, people have no legal power unless these wishes are documented.
The Law Reform Commission mentioned under 18s and Senator Jim Walsh also spoke about them. I am sure many others apart from me were deeply shocked by a recent case in America where a child of approximately nine years who was supposed to have the mental age of six or seven months had her womb, ovaries and breast buds removed because her parents decided this was how they wanted to keep her — in a state of suspended animation.
Mary O'Rourke (Fianna Fail)
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It was done so that she would not become sexually active.
Mary Henry (Independent)
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She was absolutely immobile. I would have thought that would have required much more consideration than simply the consent of the parents.
As the Marriage of Lunatics Act is still in force, we might spend another day considering that legislation. Inappropriate language is used in so many Bills, including "weak mind" and "of unsound mind". We introduced legislation before Christmas that again contained the phrase "of unsound mind". This was quite important because "unsound mind" is not defined legally, nor does it have a medical definition. In that legislation a person considered by a garda of a certain rank to be of unsound mind was not considered to be fit to operate a gun shop. That potentially took away a person's livelihood on grounds that were neither legal nor medical. We need to introduce a sense of urgency into the matter and I am sure the Department of Justice, Equality and Law Reform officials will do so.
I am most grateful to the Minister of State for his and the Government's response to the Bill. I will keep an eagle eye on its progress, probably from the Gallery as opposed to from here.
Mary Henry (Independent)
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No, not from up there at all. It will happen in the autumn when the Cathaoirleach and I are having a wild time outside the Seanad.
Frank Fahey (Galway West, Fianna Fail)
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I did not realise Senator Henry was not planning to stand for election again. In that case I join the other Senators in saying what a wonderful job she has done here. She is one of the kindest and best people. As a gesture, if she is not going to be back here, I am prepared to accept the second reading of the Bill.
Mary Henry (Independent)
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I thank the Minister of State. That is very gracious of him.
Rory Kiely (Fianna Fail)
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When is it proposed to take Committee Stage?