National Safeguarding Committee reports on the current system of wardship

The National Safeguarding Committee, which Inclusion Ireland is a member, has produced a report on the current practice surrounding the use of the Lunacy Act 1871 and wardship for adults in Ireland. The report was produced to look at the current system of wardship, the practices involved in people entering wardship and how people are treated when they are a ward of court.

While the Assisted Decision-Making (Capacity) Act will replace the ward of court system in due course, the Lunacy Act remains in place and it will likely be another 4 years, at least, before ward of court is brought to an end.

The report was launched in the Decision Support Service by the Honourable Mr Justice Peter Kelly, the President of the High Court. Speaking at the event, Aine Flynn the newly appointed Director of the Decision Support Service said that while the Assisted Decision-Making Act was not perfect, it had many, many good things including graduated supports, presumption of capacity and the functional approach to decision making (where a person’s capacity to make a particular decision at a particular time is focused on). Ms Flynn also stressed that the new Act was from a human rights-based approach and that she hoped never to hear the word ‘lunatic’ in an Irish court again.

Responding to the report, Mr Justice Kelly said that while there was always room for improvement, the ward of court system had operated well and had “saved lives”. Many of the recommendations in the report would incur expense that would be hard to justify for a system that was coming to an end, but he would take the report away and consider the recommendations.

Some of the key recommendations in the report include an improved focus on the voice and will and preference of the ward of court. Many applications to make a person a ward of court happen without the individual’s presence in court. While Mr Justice Kelly said there is no blockage to individuals attending, the report looks at ways to improve the person’s own involvement. The report also encourages that independent legal representation and / or advocates should be utilized to ensure the voice, will and preference of the individual is heard.

Other recommendations included improving process around objections, conflicts of interest and complaints and Mr Justice Kelly stated that upon his appointment as President of the High Court he began a visitor’s programme which, although no evidence of abuse was found, has managed to uncover necessary steps to improve the welfare of individual wards.

The National Safeguarding Chairperson, Patricia Rickard-Clarke stressed the importance of one key finding in relation to medical reports during wardship applications. She said that medical practitioners should be required to follow the Health Service Executive’s (HSE’s) consent guidelines and the Medical Council’s ethical guide in assessing capacity rather than using the mini mental state exam or other ‘scored’ systems of assessing capacity. Both the HSE and Medical Council favour a presumption of capacity and a functional assessment process. The report also states that access to communication aids should be available.

Overall, it was clear that there is a large transition to be made from the courts-based system towards the rights-based approach to be taken by the Decision Support-Service. The courts are required to consider the best interests of the person, while the new Assisted Decision-Making system will prioritise the person’s will and preference. The full report can be read here.