The HSE National Safeguarding Committee, which promotes the rights of adults who may be vulnerable, will recommend substantial changes in the current system of wards of court when it launches its major review of the system on Thursday.
According to the report, the current system does not take sufficient account of the will and preferences of the individual and relies too much on a belief that families and professionals will always act in the best interests of vulnerable adults.
Under the recent Assisted Decision-Making (Capacity) Act, the wardship system is to be gradually wound up and will be replaced by a radical new assisted decision-making scheme. In the interim, however, the number of applications for wardship is rising and there is a dearth of appropriate facilities for them.
A ward of court is someone who is deemed by the court to lack capacity to make decisions for himself or herself, and the court steps in to act as agent for the person.
The current ward of court system was set up before the foundation of the State for people of “unsound mind”. There are contrasting views of it. It is either seen as a Victorian-era paternalistic system that fails to respect the dignity and equal legal rights of vulnerable people, or a necessary procedure to protect people who are incapable of making decisions in their best interests about their health or finances.
Justice for Wards, a group of mainly family members set up to advocate for wards, along with the HSE committee, set up to inform and influence policies affecting vulnerable people, have voiced concern about the adequacy of protection of human rights of wards under the existing wardship system. Such concerns are intended to be addressed by the recent legislation.
End of system
The Act will end the wards system, reform enduring power-of-attorney provisions and formally recognise Advance Healthcare Directives (AHDs) or “living wills” – where people set out their medical treatment preferences, including refusal of treatment considered futile, if they lose decision-making capacity in the future.
Two important elements of the Act are already being implemented – those providing for the establishment of the office of director of the new Decision Support Service and the making of AHDs.
While a spokesman for the Department of Justice was unable to say exactly when full commencement of the Act will happen, promoters of the Act hope the appointment last autumn of solicitor Áine Flynn, a partner in Dublin-based KOD Lyons with a background in human rights law, as the director of the Decision Support Service will “kick-start” the implementation of other key provisions.
Sarah Lennon of Inclusion Ireland, which advocates for the rights of the intellectually disabled, is anxious for speedy implementation of the provisions ending wardship and those dealing with nonwards who need decision-making support. Inclusion Ireland favours a “right-based approach” of choice, control and consent, she stresses.
The Act stipulates the wardship system will be unwound within three years of its commencement, a process likely to be complex as the numbers in wardship have increased steadily year on year over the past five years. In 2016, 311 people were made wards, up from 237 in 2015. Two hundred and twenty were also discharged from wardship, whether through death or being deemed to have recovered capacity to make decisions.
‘Paternalistic and archaic’
Following review, all wards will be discharged from wardship and those with outstanding capacity issues will be placed under the Assisted Decision-Making (Capacity) Act procedures. A ward-of-court system for young people aged under 18 will remain in place.
Solicitor Patricia Rickard-Clarke, a former member of the Law Reform Commission who chairs the HSE committee, and Sage, the support and advocacy service for older people, “absolutely” welcomes the ending of wardship, describing it as “paternalistic”, “archaic” and contrary to the spirit and intent of the UN Convention on the Rights of People with Disabilities.
She says the focus will no longer be on an individual’s best interests as decided by others but on establishing the wishes and preferences of the individuals themselves, and providing necessary support and assistance for decision making where required, she says.
Many of those involved in wardship cases are enthusiastic about the new Act but some believe its full implementation will take years, not months. Some remain supportive of wardship and have argued the functional test for capacity is unduly complicated, may not work in practice and could lead to additional stress for those affected.
