January 2008

LAW RELATING TO PEOPLE WITH AN INTELLECTUAL DISABILITY MUST BE UPDATED – INCLUSION IRELAND

 

• Ireland’s position regarding capacity and people with an intellectual disability dates back to the Lunacy Act of 1871
• Cases concerning sexual assault of people with an intellectual disability not brought forward for prosecution because of capacity issues and people with an intellectual disability giving evidence
• Person with an intellectual disability cannot currently have their child adopted

 Legal issues surrounding consent and people with an intellectual disability must be immediately examined by the Government, says Inclusion Ireland CEO Deirdre Carroll. Ms. Carroll was speaking following the launch of The Law Reform Commission’s Third Programme of Law Reform 2008-2014, which among others, proposes to examine the law surrounding consent to sexual contact; how people with an intellectual disability are dealt with in the court process; and standards for carers. “I welcome the Commission’s latest Programme of Law Reform. The relationship between people with an intellectual disability and the law is outdated in many areas. Ireland’s current position in relation to capacity and people with an intellectual disability dates back to the Lunacy Act of 1871. While The Mental Capacity and Guardianship Bill 2007 was introduced as a private members Bill in the Seanad in February 2007, it has never been finalised. Lack of progress in this area means Ireland may be out of line with the UN Convention on the Rights of Persons with Disabilities, which Ireland is a signatory to.“The issue of consent and sexual contact must also be urgently addressed. Every year we see cases concerning sexual assault of people with an intellectual disability being brought to the attention of the DPP, which are not brought forward for prosecution because of capacity issues and people with an intellectual disability giving evidence. This must be urgently examined.”

Inclusion Ireland campaigns for the law to be updated in many respects. Staff member Sarah Lennon is currently working on a project, which looks specifically at the area of legal capacity and consent. She says: “The law relating to sexual relationships and people with an intellectual disability must be urgently updated. The Criminal Law (Sexual Offences) Act 1993 Section 5 criminalises certain consensual sexual acts. The extension of the law to those who cannot live an independent life is overly restrictive. On the other hand, the failure of the provision to criminalise acts up to but not including sexual intercourse may fail to protect the vulnerable groups to which the act pertains. Also, the current situation whereby a person with an intellectual disability cannot have their child adopted as they are deemed to lack capacity is causing distress to many people. This issue is especially pertinent as it is not covered in the Mental Capacity and Guardianship Bill, nor is it addressed in the Programme for Law Reform.”

Deirdre Carroll says “We simply cannot afford to wait any longer. The law must be updated now and it is the Government’s responsibility to make sure this is done.”

ENDS

Extract from the Law Reform Commission Report: Third Programme of Law Reform 2008-2014

 

Section C: Criminal Law (p. 13)

12) The law of Sexual Offences

This project will involve a general examination of the law of sexual offences. It will build on previous work by the Commission, which resulted in some legislative reforms. The project will include an examination of consent to sexual contact and whether there should be a statutory definition of the term ‘consent’. The project will also explore the extent to which the law in this area can be consolidated.

14) Vulnerable Persons and the Criminal Justice System

This project will examine how vulnerable persons, including those who are vulnerable arising from limited intellectual capacity, are dealt with in the criminal justice system in Ireland. The project will examine how vulnerable persons are treated before, during and after the court process.

Section F: Specific Groups in a Changing Society (p. 16)

29) Legal Aspects of Carers

This project will examine the extent to which the current law ensures appropriate standards for professional carers, in particular those engaged in the provision of care to vulnerable persons. The Commission will ensure that this project takes full account of the work of the Health Information and Quality Authority (HIQA).

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