The National Safeguarding Committee, of which Sage is a member, has called for the urgent commencement of the Assisted Decision-Making (Capacity) Act 2015, as a new report it publishes today finds the 19th century Wards of Court regime to be inadequate and archaic.
The report, Review of current practice in the use of wardship for adults in Ireland, found there is substantial public confusion and lack of understanding around the Wards of Court system, and that it relies too much on the integrity of family members and professionals.
The National Safeguarding Committee, which promotes the rights of adults who may be vulnerable, suggests therefore that the guiding principles contained in the 2015 Decision-Making (Capacity) Act be commenced immediately. These principles identify relevant human rights obligations and the need to respect the right of a vulnerable person to dignity, bodily integrity, privacy, autonomy and control over his or her personal affairs.
Under the current system a court steps in and acts as agent for an individual deemed by the court to lack capacity to make decisions for himself or herself. Usually, a person is made a Ward following an application by a family member, the person’s own solicitor or the Health Service Executive (HSE). There are almost 3,000 wards, with total assets of over €1 billion.
The report says there should be a presumption that a person has capacity to make decisions until an inquiry finds that a person lacks such capacity. There should be a customer charter to deal with representatives of wards, and a transparent complaints process. It found that
- There is confusion and lack of understanding around the entire Ward of Court system
- The wishes of an individual being made a Ward are not heard during an application for Wardship. This includes issues such as whether or not they want to be made a Ward at all; consent to medical procedures; where they wish to live; or how their property is to be disposed of.
- More often than not prospective Wards have no advocate who is independent of the person making the application to have him or her made a Ward.
- Vulnerable people in respect of whom wardship is sought are often given court papers they can’t understand, but not given the order of the court or medical reports about themselves
- There is no recognition that a Ward may be able to make a decision for themselves such as consent for medical procedures
- There are no clear guidelines around conflict of interest in relation to the Applicant and also the person appointed to represent the Ward (known as the Committee).
- There are no clear guidelines on the quality of medical reports on the basis of which individuals are made Ward
The paper makes a number of recommendations:
- Medical practitioners assessing the capacity of people for the purposes of a wardship application should be required to assess the person’s ability to make a decision on the specific issue for which a decision is required at the time the decision has to be made.
- Lawyers should ensure independent representation for the person involved in any application, and should also provide information, medical reports and court orders expressed in a way that is appropriate to the circumstances of the person involved.
- The Courts Service should consider adopting guidelines and protocols to ensure transparency, consistency and fairness with regard to any legal proceedings in wardship matters, and should also have a clear complaints process.
- The HSE should ensure that lawyers used in Ward of Court proceedings have appropriate expertise in relation to the law on decision-making capacity and human rights obligations in relation to persons who may be vulnerable.
- The HSE should produce national guidelines for legal and medical practitioners to ensure the protection of the rights of a prospective Ward in proceedings
The National Safeguarding Committee was established in December 2015. It is a multiagency and inter-sectoral body in recognition of the fact that safeguarding vulnerable people from abuse is a matter that cannot be addressed by any one agency working in isolation, but rather involves a number of agencies and individuals working collaboratively with a common goal.
The Assisted Decision-Making (Capacity) Act 2015 will ultimately replace the wards of court system but is not yet fully commenced. This Act provides that the capacity of all existing wards be reviewed within a period of 3 years and discharged from wardship. Those wards who, on review, are found to lack the capacity to make decisions will transition to the new system.
Read the report in full Review of current practice in the use of wardship for adults in Ireland