Sir, – The Assisted Decision-Making (Capacity) Act 2015 was enacted in December 2015 and almost five years later has not yet fully commenced. In practice, this means that various levels of decision-making supports are not operational, and that people are currently being made wards of court under the Lunacy Regulation Act 1871. More than 1,250 people have been taken into wardship since the Act was passed in 2015.
In 2018, Ireland ratified the UN Convention on the Rights of People with Disabilities (UNCRPD). The current status of the 2015 Act, resulting in the Lunacy Regulation (Ireland) Act 1871 remaining as law, is incompatible with Article 12 of the UNCRPD: “States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. The current situation is also irreconcilable with the Constitution (Article 40.3) and the European Convention on Human Rights (ECHR, Article 8).
There are many issues with the 1871 Act. It strips individuals of their legal personhood and removes their ability to make any legally binding decisions for themselves. The procedure for a person being made a ward is in itself not in line with natural justice or human rights standards.
In most cases, a person does not get any opportunity to represent themselves in court or in front of a jury, nor do they get an opportunity to see the evidence presented to the judge to challenge it.
While the 2015 Act is not perfect, its recognition of the primacy of an individual’s “will and preference” represents a paradigm shift from the paternalistic approach of “best interests” as applied in the 1871 Act. For example, an order of wardship will direct where a person is to reside from where they cannot move without further order. There has been an increasing use of wardship to detain a person for treatment where they do not satisfy the criteria of the Mental Health Act 2001. This is only one of a host of decisions that a ward can no longer make for themselves and can apply to older persons, people with disabilities or people with mental health issues where capacity is in question.
It is therefore of critical importance for the Government, through Budget 2021, to provide the funding for the Decision Support Service (DSS) and to fully commence the 2015 Act.
In 2018, the DSS stated that it required €9 million to get fully operational but was allocated only €3 million.
The DSS requires an additional €6 million in funding in Budget 2021 to function and media reports indicate that it has written to all political parties to state their planned operational date of 2022 will be in jeopardy unless funding is forthcoming. We do not believe this date is ambitious enough and call for it to be brought forward to the earliest possible date.
We would ask that the Minister, through the Budget 2021 process, makes the case for the provision of the €6 million in funding to ensure the DSS becomes fully operational.
This is one of the ways that the State can begin to reconcile the Constitution, the UNCRPD and the ECHR and promote the rights of people to be supported in making their own decisions. – Yours, etc,
Age Action Ireland;
and Advocacy Organisation;
Prof EILIONOIR FLYNN,
Centre for Disability
Law and Policy,
Down Syndrome Ireland;
LIAM HERRICK, Irish Council for Civil Liberties;
MARY FARRELL, Justice for Wards;
FIONA COYLE, Mental Health Reform;
BRIAN HAYES, The National Platform of Self-Advocates;
PATRICIA RICKARD-CLARKE, Safeguarding Ireland;
SARAH LENNON, Sage Advocacy;
CHRISTINE LINEHAN, UCD Centre for Disability Studies;