Jane, a mentally unwell heavily pregnant young woman, curled up foetus-like in a hospital bed for days, refusing to eat, speak or engage with anyone about how her baby was to be delivered. Ode, a traumatised teenage asylum seeker, spent her days fretting about clouds she considered to be harbingers of evil. Tom, a young man whose life was at serious risk due to anorexia, ended up in intensive care here before being moved to a specialist UK eating disorders unit. Carla, a middle-aged woman, refused surgery for a brain tumour that made her psychotic and drastically altered her mental state and behaviour. Marie, an elderly woman with significant physical disabilities and no known living family, lived alone in filthy conditions in a house infested by vermin.
The names have been changed but the individuals are real. They are among hundreds of people who came into the High Court wards of court list after families, neighbours, social workers or others voiced concerns about them. More than 2,600 people are currently in wardship as a result of findings by medical professionals that they lacked capacity to make decisions in their "best interests" about their personal affairs, particularly their health and finances.
The wardship system is governed by the Lunacy Regulation (Ireland) Act 1871 – which does not allow for different degrees of incapacity – and uses terminology such as “idiot”, “lunatic” and of “unsound mind”. The 1811 Marriage of Lunatics Act prevents wards of court marrying.
Commitment
The wards list includes often difficult and complex cases and is traditionally managed by the president of the High Court. Critics of the system say one of its weaknesses is that safeguards for wards are overly dependent on the outlook towards, and commitment to, wards of whoever happens to be the particular holder of that office, a commitment that has varied over the decades.
Since his appointment as president of the High Court in 2015, Mr Justice Peter Kelly’s commitment to monitoring wards is evident. He carries out a detailed weekly management of the overall list, deals with urgent cases at very short notice and ensures wards have regular reviews of their capacity and care.
Wardship cases provide a sobering insight into much human frailty, vulnerability and misery and afford glimpses of an often hidden Ireland where some elderly and disabled people live lonely lives of quiet desperation in squalid conditions. They also expose Ireland as a place where services for people with a range of disabilities or mental illness are seriously inadequate.
The wards include hundreds of catastrophically brain-injured children and adults who must have their future care needs regularly and expensively assessed because, despite persistent calls from the judiciary and others over years, the necessary laws are still not in place to guarantee them life-long care.
The weekly list has for some time been dominated by new cases of mainly elderly people with dementia and Alzheimer’s. There is also a small but increasing number of severely anorexic young people, predominantly female, but recently featuring the first case of male anorexia to come before the courts. Those with treatment-resistant anorexia are regularly transferred to the UK for specialised treatment because there are no appropriate facilities here.
Other “exports” to UK facilities include psychiatrically ill adolescents because there is no facility here to treat them appropriately, a situation that has not changed over decades.
The list also underlines that the HSE is increasingly opting to place wards in expensive private care facilities rather than provide the relevant services directly.
The interests of most wards, about 75 per cent, are represented by committees made up of family members. About 700 wards are represented by Patricia Hickey, general solicitor of wards of court, and her team of case officers for reasons including a ward having no family, or no family involvement, or concerns about possible risk of abuse, particularly financial abuse, by family members or others.
Some wards are deemed to require detention, nursing home or other placement but there are regular difficulties in accessing appropriate placements. Other wards who could manage at home with adequate support services end up being placed in nursing homes or other facilities due to the absence of such supports.
Improvement
The evidence suggests the situation of many wards does improve after being taken into wardship.
A healthy baby was delivered to Jane. While for a time she was made subject to orders permitting doctors administer contraceptive injections to her, following psychiatric evidence that another pregnancy would be physically and mentally “catastrophic”, her condition gradually improved and she had a successful first meeting with her baby some weeks after delivery. Following further improvement in her psychiatric condition she was discharged from wardship.
Ode, the teenage asylum seeker, is also said to be responding to psychiatric treatment, while Tom has made some progress after being transferred to a specialised UK unit for treatment-resistant anorexia. Carla made a full recovery after her brain tumour was removed as a result of court orders permitting that surgery. She later turned up in court with a box of chocolates, to thank the judge, who noted there was no longer any issue about her capacity to make decisions. Marie was moved from her home into a nursing home and the court was told she appears very happy there and shows no interest in returning home.
Until 2014 there were no reviews of orders for the historic detention of wards, a situation prompting considerable human rights concerns. Since taking over the wards list in 2015, Mr Justice Kelly has directed regular reviews.
As well as more reviews, the judge has appointed a team of doctors, including geriatricians, to carry out random checks without notice of nursing homes and other facilities where a ward is placed or detained to ensure they are being appropriately cared for. He has also frequently praised the dedication of the general solicitor and her team to the care of wards.
Ms Hickey believes factors behind the rising number of applications for wardship include the lack of appropriate facilities, such as some form of step-down facility between an acute psychiatric hospital and a nursing home.
She is particularly concerned about the absence of some “Fair Deal equivalent” for keeping people at home.
