Dáil Éireann debate -
Thursday, 4 Jul 2019

Vol. 985 No. 1

Report on the Wards of Court: Motion

Deputy Caoimhghín Ó Caoláin

I move:

That Dáil Éireann shall take note of the Report of the Joint Committee on Justice and Equality entitled ‘Report on the Wards of Court’, copies of which were laid before Dáil Éireann on 22nd February, 2018.

I would like at the outset to thank the Minister for Justice and Equality, Deputy Flanagan, and other colleagues who have made the effort to attend here this afternoon to discuss the committee's report on the wards of court, which our committee published last year.

As I stated in my preface to the report, the wards of court system has played a vitally important role in allowing the courts to make decisions regarding the protection of persons and their property when they are unable to look after their own affairs. As of 2015, there were in the region of 2,700 wards of court, with funds valued at over €1 billion. Wards and their families rely heavily on the wards of court system and the expertise within the Courts Service to invest these funds wisely.

During the financial crisis, decisions taken by Courts Service managers led to a significant downturn in the value of the funds of a not insignificant number of wards of court. We were advised that some lost their entire funds and were left to depend on social welfare payments. In examining this issue, the Committee on Justice and Equality set out to understand how the loss of funds had transpired - funds that are vital to maintain the accommodation, care and quality of life needs of some of the most vulnerable people in our society - and to make recommendations as to how, insofar as possible, the situation might be remedied.

In October 2017, the committee engaged with the Justice for Wards group, representatives of the Courts Service and officials from the Department of Justice and Equality. The hearing gave rise to highly conflicting evidence regarding the effective management of the funds of wards of court. Having considered the evidence presented, the committee was and remains strongly of the view that the cases identified by the Justice for Wards group where funds have been significantly depleted should be subject to a comprehensive independent audit that would engage with the representative family members of those affected. Equally, a more involved relationship between parents and guardians and the Courts Service is required.

The committee is of the view that an independent review of the Courts Service's disposition towards and engagement with parents and guardians of wards should be undertaken. Representatives of wards of court recounted their experiences, speaking of an invisible but real wall around the Courts Service and the Office of the General Solicitor for Minors and Wards of Court. Their experience was that there was no accountability or transparency and that they were most often met by silence.

There is nothing in the mission and functions of the Courts Service to suggest this entity is geared towards managing, let alone responsibly managing, an investment portfolio valued at more than €1 billion. In the experience of the aggrieved families, it has never demonstrated empathy towards their and their loved ones' situation. Its functions are to manage the courts, to provide support services for judges, to provide information on the courts system to the public, to provide, manage and maintain court buildings and to provide facilities for users of the courts. There is nothing there to give comfort to or assuage the fears of those who have been grievously ill-served by the wardship system.

The withholding of information, including account details, has rightly vexed these families. The committee recommends that in cases where the funds for a ward of court are depleted, the remaining portion of the funds should be disregarded for assessment of medical card entitlement and other State benefits. Contingency plans for essential needs such as healthcare and accommodation should be set in train for individuals who are identified as being particularly at risk. Although the committee commends the extensive work undertaken in 2018 to advance the implementation of a decision support service, as introduced by the Assisted Decision-Making (Capacity) Act 2015, we continue to urge the Government to provide the resources necessary to ensure the decision support service is fully operational as soon as possible. That translates into now, next week or next month but very definitely not next year or by the end of 2020. In light of the projected further three years to having existing wards transferred to the new decision support service and the abolition of the wards of court system, such a timeframe would be wholly unacceptable to the cohort of largely aged and ageing family members who very understandably are anxious over the certainty of their loved ones' care and future.

Finally, the committee, subject to the view of the Attorney General that it is legally and constitutionally permissible, recommends that the Comptroller and Auditor General (Amendment) Act 1993 be amended in order that the investment funds for wards of court can be audited by the Comptroller and Auditor General.

In conclusion, I wish to express my sincere gratitude to those who contributed to the preparation of this report: the witnesses who attended our public hearings, particularly the representatives of Justice for Wards, ably led by Mary Farrell who, along with others, is in the Visitors Gallery; the members of the joint committee who worked with me on the hearings, discussion on the report and the adoption of the recommendations; and the staff of the committee secretariat and the Oireachtas Library and Research Service. I urge the Minister for Justice and Equality and his Government colleagues to give the report their detailed consideration and to provide with due haste a timeframe for the implementation of the recommendations therein.

Minister for Justice and Equality (Deputy Charles Flanagan)

I welcome the opportunity to speak on this motion. I note the Chairman of the Oireachtas Joint Committee on Justice and Equality, Deputy Ó Caoláin, acknowledged my presence for this debate. I assure him and other Members that I regard it as my duty to attend in person for this important debate on an important report. I am pleased to have the opportunity to be here.

As Deputies will be aware, the management of the courts is the responsibility of the Courts Service, which is independent in exercising its functions under the Courts Service Act 1998, and the High Court has jurisdiction in wards of court matters. Having regard to the important issues raised and the work undertaken by the committee, I am pleased to be joined by Ms Joyce Duffy, a senior official in my Department, Mr. Sean Quigley, head of human resources at and accountant for the Courts Service, and Ms Alice White of the Courts Service. Important issues have been raised and it is important that they be addressed. In this regard, I wish to confirm that my Department and the Courts Service have received and reviewed the report on the wards of court published in February 2018 by the justice committee. I thank Deputy Ó Caoláin and the members of his committee for their interest in the matter. I note that six recommendations relating to wards of court matters were made.

I assure Deputies that the Government is fully committed to the implementation of the Assisted Decision-Making (Capacity) Act 2015, which provides a modern statutory framework to support decision-making by adults with capacity difficulties and I welcome the upcoming changes in the wards of court system. The aforementioned Act is significant reforming human rights legislation framed to meet Ireland’s obligations under the UN Convention on the Rights of Persons with Disabilities, which provides a comprehensive and robust framework for the realisation of the rights of people with disabilities. The Act will also abolish the current wards of court system by repealing the Lunacy Regulation (Ireland) Act 1871.

The current wards of court system for adults will be phased out over a period of three years from the commencement of Part 6 of the Act. The Act offers a continuum of options to support people in maximising their decision-making capability. New administrative processes and support measures must be put in place before the substantive provisions of the Act can be commenced. These measures include the setting up of the decision support service within the Mental Health Commission, a body under the Department of Health.

I am pleased that the Revised Estimates for 2019 provided an additional €3.5 million for the establishment of the decision support service. My Department will continue to work closely with the Mental Health Commission and the director of the decision support service to deliver the full implementation of the Assisted Decision-Making (Capacity) Act 2015 as soon as possible.

The Deputies will be aware that it is a matter for the presiding judge, who is independent in the exercise of judicial functions under the Constitution, to determine the level of funding awarded in individual cases. I understand that in some cases, those awards may not be sufficient to provide the care and assistance that the person needs or requires. Therefore, I have signed the commencement order bringing Parts 1, 2 and 3 of the Civil Liability (Amendment) Act 2017 into operation with effect from 1 October last year. The Act, which allows courts the power to award periodic payments rather than a lump sum payment in cases of catastrophic injury, will provide much-needed financial security to persons requiring lifelong care and assistance following a catastrophic injury. I believe the availability of a periodic payment to those who have suffered catastrophic injuries will ensure they will receive the care and assistance they require for the rest of their lives.

I wish to turn to the specific recommendations as presented by the committee in its report and as highlighted this afternoon by the committee Chairman, Deputy Ó Caoláin. I will begin with the first recommendation. The Courts Service has advised me that in December 2017, Mazars, a leading international audit firm, was appointed to conduct the audit of 63 ward-of-court cases. The review showed that there were no significant losses incurred by these cases during the financial crisis and that virtually all of these cases had net realised gains when the units were sold. The significant investment returns from investment performance extended the available funds to meet ongoing care and maintenance in respect of these cases by a considerably longer period than would have been the case if the cases had not been invested in growth funds. In effect, the reduction in the available funds in certain cases to the point where they are likely to run out is not attributable to poor investment performance. Rather, it is due to a combination of other factors, including the level of expenditure incurred to care for the ward of court, the value of the compensation awarded by the court and the life expectancy of the ward. Therefore, the availability of a periodic payment to catastrophically injured persons is important in ensuring that the ward will have sufficient resources and will receive the appropriate level of care and assistance that will be required for the rest of his or her life.

With regard to the second recommendation, the Courts Service has informed me that the wards of court office commenced providing statements automatically to the committees of wards of court during the third quarter of 2017. These statements are high-level reports on the funds in court and the performance of the funds and, if more detailed reports are required at a later stage, they can be made available on request. I understand that many committees of wards of court have received two statements at this stage. The Courts Service will continue to send out statements to committees of wards of court on an annual basis.

The third recommendation relates to a number of Departments and is under consideration by my Department. My Department officials are engaging with the relevant Departments to discuss and establish any action possible on foot of this recommendation. I understand that the Department of Employment Affairs and Social Protection, through its own resources and its funding of the Citizens Information Board, provides timely, accurate and accessible information on its supports through a variety of methods and these are available to the committees of wards of court. I believe that since annual statements are being issued to the committees on a regular basis, the eligibility of the ward for income supports from the Department of Employment Affairs and Social Protection should be noted prior to the depletion of the ward's funds.

The fourth recommendation concerns the Assisted Decision-Making (Capacity) Act 2015 and the upcoming changes to the wards of court system. It is anticipated that commencement of most of the provisions of this Act will take place during 2020. Each adult ward will be reviewed in accordance with the new system. A ward who is found to have capacity will be discharged from wardship. A ward who continues to have capacity needs will be discharged from wardship and offered the support option most appropriate to his or her needs. In this regard, the Government is making the necessary financial resources available for the setting up of the decision support service through an allocation of a sum of €3.5 million in this year's Department of Justice and Equality Vote. I wish to confirm that the commencement of most of the provisions of the Act will take place next year.

With regard to the fifth recommendation, the Office of the Attorney General has advised that the proposals on the audit of wards of court funds by the Comptroller and Auditor General is incompatible with the Constitution's architecture and is not consistent with Article 33.1. The advice of the Attorney General is that wardship funds are not public funds but are subject to the control and supervision of the High Court. These are essential obstacles to enabling the Comptroller and Auditor General to take on responsibility for auditing such funds. The advice of the Attorney General is also that legislating for Comptroller and Auditor General oversight of these funds could undermine the independence of the Judiciary and the administration of justice under Articles 34.1 and 35.2 of the Constitution. The Courts Service has advised that there is already independent oversight of the wards of court funds. The funds are independently audited by external auditors in compliance with the generally accepted auditing standards and the audited statements are published.

Under the sixth recommendation, the committee called upon the Government to ratify the UN Convention on the Rights of Persons with Disabilities without further delay. I am pleased to note that Ireland has now ratified the UN Convention on the Rights of Persons with Disabilities and the convention came into force for Ireland on 19 April 2018. The optional protocol will be ratified following the completion of the first reporting cycle under the convention.

I am pleased to have had the opportunity of being here. I hope that I have addressed many of the issues raised in the report. I am happy to listen to any further observations or submissions that members of the committee or more generally Members of the House have to make in the course of the debate.

Acting Chairman (Deputy Bernard J. Durkan)

I call Deputy John McGuinness, who has ten minutes.

Deputy Catherine Connolly

Can we have a copy of the Minister's speech?

Acting Chairman (Deputy Bernard J. Durkan)

It will be circulated.

Deputy John McGuinness

I have listened carefully to what the Minister has had to say. I am sure the same contribution to a debate like this could have been given in previous years. Nothing has changed. The fact of the matter is that wards of court and those who campaign for transparency in the system have been at this for years, dating back to before 2002. Certainly, the matter was raised in 2002 at the Committee of Public Accounts. Right now, people can read on the website some tales from individual families.

The parents of one family are 73 and 74 years of age. They are now caring for their son, who has €25,000, though he was granted €516,000 in 2007.

The lack of information being given out to families is a disgrace and needs to be addressed. The Minister's suggestions about the Assisted Decision-Making (Capacity) Act 2015 do not address the efficiency of the wards of court, or the accountability and transparency that is required, in any significant way. The Minister, in his speech, erected roadblocks at every turn for families who want basic rights applied both to the fund and to the administration of their cases. Those rights include a right to information, a right not to be obstructed in the courts by the General Solicitor, a right to understand how the money is invested, a right to the statements and a right for family members to participate with the fund and the individual concerned in a meaningful and constructive way. They have a right to basic information without having to pay for it, fight for it, or go to court for it. One family member of a ward of court had to pay €30,000 to go through the courts to get some input into the care of their loved one. If the Minister thinks that is fair in this day and age, then we are seriously out of kilter with the demands of the families concerned, the wishes of the Committee of Public Accounts of years ago and the wishes of the Joint Committee on Justice and Equality now. I commend the Joint Committee on Justice and Equality for the work it has undertaken and the report it has provided to this House. However, there seems to be an unwillingness to address the central issues, namely, accountability for the funds, the involvement of families and the fact that the HSE in particular continues to involve people in this system. It is not working and does not work for families.

Wards of court are now trying to exist on disability allowance, despite the fact that they were given awards in court on the basis that they were needed for their future care. Those funds were poorly invested and managed by the State and there is little explanation of the fees and charges involved. The people who are suffering are the very ones who should not suffer, because they were given these awards by courts in the past. It has nothing to do with the judges or what they awarded, but has to do with the management and transparency of the fund. It is rather ironic that the Minister says the Comptroller and Auditor General cannot audit these funds for legal reasons, as they are not public funds, because when I introduced the Court Funds Administration Bill in May 2017, the Minister supported it. It is currently on Second Stage in this House. If the Minister really wanted to do something about it, he could take that Bill and the commitment he gave by allowing its passage to Second Stage and pass it. He may amend it as he wishes, if that makes it work better. He could also bring forward legislation to allow the independent office of the Comptroller and Auditor General to audit these accounts.

There are two strands to this debate. One is the right of individuals to information so they and their families know where the money is invested and what the charges and fees are about. There should also be constructive engagement with the General Solicitor and the system itself to ensure families are put at ease and are comforted that the best is being done. They also need an explanation of how these funds were managed and why they are now reduced to a level where they cannot pay for the care supports needed by the individuals concerned. If the State were to deem it necessary to address those funds because of the funds' bad management, then it should also be prepared to offer top-up funding in some of those cases. The Minister has said that Mazar's audited approximately 60 of these funds, but anyone in the Public Gallery today will tell the Minister a different story. He should ask them how they are treated regarding being given basic information.

It is surely a reflection on this House that we are still looking at an Act from the 1800s which uses language such as "lunatic" and so on. In a modern democracy, and for the sake of society and the weakest people in it, we should at least be giving them their proper titles. We should have proper structures for families to engage with. Three to four years is too long to wait for the implementation of the 2015 Act. Parents are now moving on in years and the logistics of transferring funds and doing whatever is necessary according to that Act adds to those years. All they want is for the Minister to strip away the bureaucracy and the commentary of how it cannot be done and to look at the basic courtesy families require. The Minister needs to address the basic information they need and deliver it to them in a sensible, constructive way. They should have input into the management of the care of the individuals concerned and should be given information so as to understand the extent of the funds left and how they are going to be managed. It is far too adversarial a system for families who are trying to engage constructively. That could be taken out of the system with a little common sense and we could begin a process of treating people fairly and delivering what everyone in every sector of society demands - information, transparency and accountability.

If we are acting as a Parliament on behalf of the people of this country, I appeal to the Minister to meet those who have been campaigning for this change for a number of years before he leaves this Chamber today. He needs to listen to the other side of the story, rather than relying on the official side that is delivered to him. He should understand their concerns and their desire to help and assist loved ones who cannot help themselves. We owe it to them. Both the Joint Committee on Justice and Equality and the Committee of Public Accounts of yesteryear have highlighted this. Everyone is appealing to the Minister to cut the nonsense, apply common sense and deliver the basic requirements campaigners are asking for. Nothing else will do and anything else is just fobbing them off and sending the fool further.

Deputy Jim O'Callaghan

Many people contact the Joint Committee on Justice and Equality asking the committee to conduct investigations into legitimate grievances they have, either as individuals or as organisations. Unfortunately, the committee does not have the capacity to conduct investigations into everything.

By necessity, we must be selective about the issues in respect of which we decide to have public hearings and produce reports. I am very pleased that one of the areas the committee decided to inquire into and report on involved the issues raised regarding wards of court. We know from Deputy McGuinness that there have been previous inquiries by committees of this House into issues associated with wards of court. The Committee of Public Accounts conducted a number of inquiries in respect of it. We know that after our own inquiry, the National Safeguarding Committee produced a report on the wards of court system. I think everyone in this House agrees with its findings, namely, that the system is a 19th century system that is archaic and unsuitable for the 21st century. I commend the people who urged and requested the committee to conduct public hearings into this matter and I thank all of the individuals who came before the committee during our public hearings. What stands out most in my memory from those hearings were the families of the wards of court who came before us and told very gripping stories about how they found themselves in extremely difficult circumstances because of the great trauma they suffered and expressed their belief that the wards of court system did not serve them or their loved ones well.

We spend many hours in this House talking about personal injuries actions and how we need to reduce awards in such actions. Earlier today, we passed the Judicial Council Bill 2017 to establish personal injuries guidelines. In recent years, the assumption has taken hold that anyone taking a case in respect of a personal injuries claim has a questionable motive. If we want a more legitimate and balanced assessment of the issue of personal injuries claims, we need look no further than the people who unfortunately find themselves wards of court. The wards of court system operates to protect those who are unquestionably the most vulnerable in society. In many instances, they are young people who sustained catastrophic injuries at birth and need support and financial damages to ensure that they can maintain themselves throughout their lives. They are made wards of court and get a settlement of money as a result of negligence, admitted or otherwise, paid by another side. The reason they are made wards of court is their mental infirmity - the fact that they cannot manage their own affairs. The purpose of the wards of court system is to ensure that there is an independent, court based process whereby the affairs of these people can be independently managed.

Where conflict arises is in respect of the family members who sometimes feel they have been excluded from the wards of court process. Many of the issues that have arisen in respect of these cases can be traced to other issues aside from issues of concern in the Office of the General Solicitor for Minors and Wards of Court. One of the problems is that if people are given an award of damages at a very young age for injuries sustained at a very young age, it can be extremely difficult for a court to calculate the level of damages that are required to sustain these people throughout their lives when it is not known at the time of the award how long their lives will be, the nature of the demands they face and the cost of inflation in years to come. Fortunately, in recent years, we have introduced legislation that will give effect to periodic payments. In many instances, a person who has been injured, goes to court and is awarded a sum of money by way of damages by that court can now receive periodic payments. The court will have a more accurate assessment of how much money is required for that person throughout his or her life so that he or she does not find himself or herself in a situation many people who came before us have found themselves. Let us talk about that situation. It can involve persons who were awarded a sum of money to ensure that they could be cared for throughout their lives finding themselves at a point in their lives where that money has simply been dissipated.

The committee heard much evidence about what happened to the money. There is no doubt that we received conflicting and diverging evidence as to whether the funds were managed prudently or effectively. The Minister spoke about the Mazars report. We heard from the families who have a different point of view on the competence of the management of the money. It was for that reason that we mentioned in our recommendations having heard conflicting and diverging evidence as to how prudently and effectively funds for wards of court have been managed. As a result, we made a recommendation that there should be a comprehensive audit of cases identified by the Justice for Wards group of funds where funds had been significantly depleted during the years of the financial crisis. In fact, we specified those years as the two years between 2007 and 2009. I do not know whether there was any financial mismanagement. The Mazars report seems to suggest that there was no mismanagement but credible evidence was put forward by the persons who appeared before the committee and it was on that basis that we made our recommendation. We also recommended that financial statements be provided to the wards on an annual basis or even more frequently. The Minister has indicated that this is now being done but we need to ensure it is done regularly and consistently.

We also called upon the various State agencies to work together to identify the individuals at risk and draw up contingency plans to provide for their essential needs, including healthcare and accommodation. This is something for which we have a real responsibility. If it is the case that wards of court find that their funds have dried up, the State has a responsibility to them and we need to ensure that they are protected throughout the remaining years of their lives. I note that we have spoken about the legislation that will establish the new design support service. It is imperative that this service is made effective and is properly funded and resourced so it can carry out the important functions required of it.

One of our recommendations was that the Attorney General be asked to consider whether the Comptroller and Auditor General could audit the funds in the Office of the General Solicitor for Minors and Wards of Court. I note the Minister's comments and the advice of the Attorney General. I do not believe our recommendation could have gone any further than that. We said it was subject to the view of the Attorney General and it appears to be the case that these funds will not be audited by the Comptroller and Auditor General. This means, however, that we need some system in which the families have confidence to audit those funds on a frequent basis.

I note that we have ratified the UN Convention on the Rights of Persons with Disabilities but our recommendation on this matter emphasises that there are very many archaic aspects to the legislation on the Statute Book that still refer in archaic language to people suffering from lunacy. We must ensure this language is changed for good and does not come back.

I commend the families of the wards of court who appeared before the committee and I thank the committee for the work it did. We have limited powers as a committee. All we can do is have hearings and produce a report. We are not in control of the executive arm of Government. All we can do is make recommendations in respect of the matter. Some of the recommendations are being implemented and I urge the Minister to ensure that all of them are implemented as quickly as possible in order that we can provide some level of comfort to the people who find themselves in this very difficult position. We will never be able to provide them with the full level of comfort they want but we have a responsibility to try to provide as much comfort as we can.

Deputy Sean Fleming

I welcome the opportunity to speak in this debate and I thank Deputy Ó Caoláin, the Chairman of the Oireachtas Committee on Justice and Equality, and all the members of the committee who produced this fine report some time ago.

Above all, I thank the members of the families of wards of court, many of whom are with us today and have been in regular contact with us as Members of the Oireachtas in relation to their ongoing difficulties in the funding of necessary services to provide for their family members who are wards of court. Certainly, there have been major difficulties in relation to the funding, despite awards being made by the courts some time ago and being managed by the Courts Service. That is one of the principal reasons we are here today.

I acknowledge also the work of Inclusion Ireland, which has been in contact with us and which has asked for a fully independent review of the management of the Courts Service wards of court funds. It also is seeking an independent review of the manner in which the Courts Service interacts with the wards of court and their families. It includes many concerns the families have. This is important because everybody feels they are shut out, excluded and not consulted. They are told they have no real business here and that the service is responsible for the wards of court. We have seen it in several cases. We all know individual cases where this is so.

Above all, we need adequate funding in the Estimates to allow the full commencement of the Assisted Decision-Making (Capacity) Act 2015. I am told it will cost €9 million to get it fully up and running. I acknowledge the Minister stated here today there is an allocation of €3.5 million. It is a start but it will not allow the service get up to the capacity we require as urgently as possible.

While I am not a medical practitioner and I am merely going on the experience of those I have met, persons can become wards of court because of capacity issues, as a result of accidents or in many cases due to catastrophic injuries suffered at birth. People have told me that they went to court, the award was made and at the last minute before leaving the court they were told the court was making a member of their family a ward of court. All solicitors know that this is the situation because the person, clearly, if he or she is getting such an award for a catastrophic injury, has not capacity. By definition, the courts know that they must deal with that issue. However, the family members tend not to have been informed. Many of them get a shock and do not really understand what this is about. It gets dropped on them at the last minute. There is no debating it in the courts. The facility is part of the courts system. One of the reasons we are here is the separation of powers between the courts and the rest of public life, including the democratically elected national Parliament. The matter has to be dealt with.

There have been some cases recently and I have been dealing with a couple of cases. The Minister provided the information for persons who want to get out of being wards of court. There were seven requests last year and seven the previous year, all of which have been granted. That is where the persons go for medical tests and it is deemed that they have capacity. It means, in some cases, not specifically the cases that the families brought to our attention, that the HSE has been too quick off the mark in the situation where it sees an old person in a nursing home or a person who needs to be brought into a nursing home and it is not satisfied that person will be looked after by next of kin, and it moves quickly. There is a closed shop once one gets into the court dealing with these issues. The HSE gets somebody made a ward of court and sometimes the family, extended family or the neighbours who have been looking after the person might not be aware of this issue.

I take slight issue with what the Minister for Justice and Equality stated about the independence of the courts, these not being public funds and the Comptroller and Auditor General not being allowed audit them. Wearing my hat as Chairman of the Committee of Public Accounts, I come at this from a different angle. This information might be a surprise because the committee to which I refer discussed this as recently as today with the State Claims Agency. That agency pays out €350 million per annum on the various compensation claims, most of which are due to medical negligence. I refer to the type of cases where catastrophic injuries happened at birth. A high proportion of the money the State Claims Agency pays out, which is taxpayers' money, is paid directly to the Courts Service in respect of wards of court. The Minister might not be aware that the majority of the funds going into the wards of court fund come straight from the taxpayer through the State Claims Agency. Most cases, including the case we heard about yesterday, involve public funds going into the wards of court fund. I accept that when there is a car accident, a private insurance company is involved and in such a situation it is not public funds. We must approach it differently. I take the view that if somebody does not have capacity - this should be dealt with under the new legislation, the Assisted Decision-Making (Capacity) Act 2015 - the funding should not be put into the Courts Service system at all and should be managed by the National Treasury Management Agency, which is the agency that manages and invests everything on behalf of the State. The State Claims Agency, which is the agency which negotiates the settlements in court cases, is the best placed organisation to manage this. I accept the Comptroller and Auditor General cannot go in and audit anything in the Courts Service because there is a separation of power between the Courts Service and the Oireachtas. That is fine. The answer is we should not have the funds under the Courts Service.

When one thinks about it, who are the judges or the Courts Service to know anything about managing investments? I accept they hire expertise. However, it is still not their brief. Judges are legal practitioners making different categories of decisions every day of the week and they are not geared to manage public funds. We must take those funds out of the Courts Service. It is a burden on the Courts Service. It should not be dealing with these issues. Let those who manage funds manage funds and let the Courts Service and the courts do their job. When the Assisted Decision-Making (Capacity) Act 2015 fully gets up and running, we should move to the funds going to and being managed by the State where there is accountability and transparency. That could be done fairly promptly. It would probably be a more direct way of dealing with some of these issues.

I would also be concerned if the Courts Service has any role at all in the Assisted Decision-Making (Capacity) Act 2015. I do not know whether the Act comes under the Department of Justice and Equality. I thought, because it refers to mental health, it should be under the Department of Health. When one thinks about it, most of those concerned are made wards of court on medical grounds. This should be done in the medical sphere and the funds should be managed by a State body, the job of which is to look after public funds. It is not the way people have been taking this debate but I ask that the matter be reconsidered in that light. The Minister correctly states in relation to the wards of court that it is matter for the deciding judge who exercises his judicial functions and one cannot cut across that when he or she sets an award in court. I accept the judge should make his or her decision and set the award, but he or she should be off the pitch thereafter and the management of those funds should not be under the stewardship of the judges. The judges have been involved in adjudicating and ruling on the level of the awards and they should have no further role in it. That is another way of going about this.

The periodic awards is a good idea. The State Claims Agency told us at the Committee of Public Accounts two hours ago that it has made three to date. I hope that is a start. I understand from what its representatives stated that there is provision for periodic awards but it is always up to the injured party to decide whether he or she wants to accept it or not. It is not compulsory. People have an option when it comes to that as well. The lump-sum issue can be dealt with based on the periodic awards, if people want to go that route.

The question is who manages these funds and who provides for these services. There has to be further engagement with the HSE because many of the major difficult cases are as a result of medical negligence. The HSE should have an ongoing commitment to the injured person for life if the injury is the result of medical negligence by an employee or group of employees who are involved in the delivery and where there was negligence. The HSE should always have a monitoring role in the provision of services into the future. We are all aware of cases where there was no medical negligence, people got serious injuries or some other illness and required 24-7 nursing care, and the HSE provides that in a small number of cases. It is very expensive but the HSE has a role in this matter.

I want to speak up generally on behalf of the wards of court and their families. Even though the families are not involved in theory, they are wholly involved in it every day. They need to be supported because they have been on a long campaign for a number of years and they want to see action on this matter.

I accept the Minister's legislation is significant but some further changes need to be made to resolve this situation once and for all and take this issue out of the Courts Service for the future.

Deputy Sean Sherlock

I support the report of the Joint Committee on Justice and Equality in respect of wards of court. I congratulate the members and the Chairman, Deputy Ó Caoláin, on the job of work they have done in respect of the recommendations they have made. I listened very closely to the Minister's speech. If I was listening to this debate as a relative of a ward of court, I would ask myself if I had heard anything to give me some semblance of hope for the future in terms of the issues and recommendations that have been aired. The answer to that question is that the jury is still very much out in terms of seeking closure to many of the issues raised in the report.

The Minister contends, in respect of the advice of the Attorney General, that:

[T]he Office of the Attorney General has advised that the proposals on the audit of wards of court funds by the Comptroller and Auditor General is incompatible with the Constitution's architecture and is not consistent with Article 33.1. The advice is that wardship funds are not public funds [that is the key line in that sentence] but are subject to the control and supervision of the High Court. These are essential obstacles to enabling the Comptroller and Auditor General to take on responsibility for auditing such funds. The advice ... is also that legislating for Comptroller and Auditor General oversight of these funds could undermine the independence of the Judiciary and the administration of justice under Articles 34.1 and 35.2 of the Constitution.

In the absence of an alternative to that recommendation, I ask that the Government come forward with a set of proposals to ensure that this particular recommendation is addressed. If we take the advice of the Comptroller and Auditor General at face value, given that the Committee of Public Accounts has endorsed the position of Inclusion Ireland in respect of that recommendation, some sort of architecture, to use the Minister's word, should be put in place to ensure that the recommendation in respect of auditing is dealt with. This is germane to the issue at hand. There is a responsibility on the Government of the day to deal with this very point. The Joint Committee on Justice and Equality has made a set of recommendations, which are followed by a particular recommendation by the Committee of Public Accounts. If the advice of the Attorney General is contrary to those recommendations, something has to be put in place to meet the needs of the people who want to see transparency in respect of the auditing process. If people perceive that there is something wrong with the process, that is enough. The perception must be dealt with.

A key point is made by Inclusion Ireland. I acknowledge the work it and Justice for Wards have done on this. In an email I received today, Inclusion Ireland states that, with regard to the funds that are lost, the Committee on Justice and Equality asked for an independent review to take place, including those funds identified by Justice for Wards. The email further states that the review that took place by Mazars almost immediately after the report was published looked at 63 cases, but it is unclear whose cases were looked at and whether those cases were representative. That is why Inclusion Ireland is calling for a fully independent review. This is vital. It is a reasonable request and should be acceded to.

The qualitative relationship and the culture that exists around the relationship between relations, loved ones and the Courts Service is something that needs to be addressed. In the minds of loved ones and relatives, there is a serious lack of empathy and sympathy. That is how they perceive it and it has been the experience of some of the people who have interacted with the Courts Service. This needs to be addressed as a matter of urgency. Inclusion Ireland speaks to this very issue. The report of the justice committee called for a review of the Courts Service's disposition towards and interaction with wards and their families. Inclusion Ireland has experience of engaging with the Office of the Wards of Court and supporting other people who have also been in contact. Communication is difficult with the office, according to Inclusion Ireland, which states that it has been aware of families who have had communication cut off completely when they queried matters, families who received no advance warning that their fund was about to run out, and a refusal to share documents, even with the person. Data protection is used as a block. On one occasion, Inclusion Ireland was supporting a woman who was a ward of court and the office refused to provide her with information about the court orders on the basis that she would not understand it. I do not question the bona fides of Inclusion Ireland as an advocacy organisation. I am taking at face value and accepting what it has stated to me in this email. Inclusion Ireland states that this is contrary to natural justice and a breach of public duty. Therefore, the second issue I want to see addressed is the nature of the relationship and the culture that exists. It is clear that there needs to be a paradigm shift in ensuring that people are treated with respect and that their dignity is recognised. It does not take funds or moneys to do that. All it takes is a change in behaviour and I do not think it is an unreasonable request.

I agree with the points made by other speakers. I have been involved in this for a reasonably short time and am not a member of the Joint Committee on Justice and Equality. However, I feel there is more work to be done. I have listened carefully to my colleagues on all sides of the House where they seek the repeal of the Lunacy Act 1871 as soon as possible and a review of all wards within three years. The Minister has gone some way on that, in fairness to him, but it needs to be expedited. The full commencement is also sought of the Assisted Decision-Making (Capacity) Act 2015, with a commitment of €9 million in the budget process. Again, from a financial point of view, the Minister has gone some way to making funds available for that. This is a non-partisan issue which could conceivably affect any of us at any time in our lives. It is important that we as an Oireachtas do everything we can to ensure that these issues are addressed. I daresay that there is more work to be done in respect of this issue. I commend the work of the committee. Work needs to be done on the guidelines requiring a consistent standard of assessment for wardship. There are issues in respect of the right to independent non-legal advocacy. People need advocates. There is the issue of the inaccessibility of court documents and the issue of the review of wards. One point that has also been made to me is that once a person is made a ward, there is no recognition that a ward may have capacity to make particular decisions himself or herself. The Minister also speaks to that point but we need to do more work on it.

The Labour Party is fully supportive of the recommendations of the report. We need to parse further the words of the Minister.

We need to have a further deliberation within the Oireachtas Joint Committee on Justice and Equality or in the House in respect of some of the legal issues that are outstanding. This has been a very useful opportunity to air these issues. I acknowledge the work done by the families, by the advocacy organisations and by the members of the justice committee, without whom we would not have this debate today. A good job of work has been done in raising the consciousness of the issue among the wider membership of the Dáil.

Deputy Catherine Murphy

I welcome the opportunity to speak on this motion. One has to look at this matter in the context of the UN Convention on the Rights of Persons with Disabilities, which Ireland has ratified. When discussing the ratification of that convention, many Members made the point that it would be inconsistent for Ireland to ratify it without actually putting in place the nuts and bolts that actually make a difference and that this would have to be done in a timely way. There were concerns at the time in that regard.

While it is welcome that the National Disability Inclusion Strategy 2017-2021 provides commitments on a number of key objectives, there are areas it does not address comprehensively or where matters remain outstanding. I understand there will be a mid-term review of the national disability inclusion strategy by the end of this year, which will consider ways that it may need to be revised to ensure, as far as possible within that timeframe, a full implementation of the UN convention. That would seem to be an opportunity to address this issue.

One such area must be the operation of the wards of court system. The Committee of Public Accounts and the Joint Committee on Justice and Equality have spent a significant amount of time on this issue. It has been frustrating because the area is one step removed. This is the very point being made, for example with regard to auditing by the Comptroller and Auditor General. The Committee of Public Accounts found it is not under its remit, the Comptroller and Auditor General does not report to the committee on the wards of court system, and therefore its members do not have the information to interrogate it. A system of interrogation needs to happen where one can be absolutely sure that it is not just a dry report and one can tease things out. This is why the demand was made for that kind of oversight. It was very welcome that the Joint Committee on Justice and Equality took ownership of preparing this report and it was quite proper that the Committee of Public Accounts did not duplicate that work. Today is the opportunity for us to debate it.

The establishment of the decision support service is critically important. The Minister has said this would be established and work on it is intended to commence in 2020. This will be provided over a three-year period, with a handover to the decision support service for the existing wards of court system. Will the Minister indicate if this handover is intended to be gradual? Money is going into the system, which is budgeted for, and more money has been promised and then it would be concluded. How is that intended to happen in reality? Must the service be completely up and running or will taking on responsibility be achieved through a gradual rolling out or moving across from the current system? Perhaps the Minister will address this point.

While the new decision support system is in line with the UN convention and therefore is very welcome, in reality a four-year timeline for the changeover will seem like a lifetime for people who are in need of a decision sooner. It creates significant difficulties, especially for people who are older and looking after a family member, who usually is a younger person, and providing care. These are not disinterested parties. Is it possible for this changeover to happen quicker? I believe it must be done quicker. What are the nuts and bolts of this process that would mean it could take that length of time?

The Minister will be aware there are legitimate reasons for many people not wishing to enter the wards of court system. Some of these reasons include a feeling of loss of control, areas of secrecy and the exclusion of the person's family members on whom he or she relies to be his or her support. They are key people who make decisions on their behalf and who they trust. As has been referenced here on several occasions, there is also the fact that we use language such as Lunacy Regulation (Ireland) Act 1871.

Other concerns may not be as emotive but are certainly important. The Committee of Public Accounts has written reports on such issues, namely, the financial arrangement and management of people's funds. I agree with Deputy Fleming with regard to the people who have specialist expertise in this area. There are large question marks in this regard and people want to be satisfied about how money has been used, how it has been invested and if it has worked to the benefit of the person who is the ward of court. If there is a doubt on that, which there is, I believe it is legitimate that such doubts need to be fully vindicated. There is no external complaints system for the oversight of the wards of court at present and it is very hard to see how one can guarantee accountability in circumstances where people cannot have sight of how the system is working. The courts can be a very cold place and by their very nature are rules based. We need to see the person at the centre of all of this.

As the Joint Committee on Justice and Equality has examined in detail the issues and has given solid recommendations, the changeover from the wards of court system to the new decision support system, as recommended under the UN convention, must be completed as a matter of urgency.

The courts take quite a paternalistic "we know best" approach when a person is trying to plan the care of a loved one. That person does not quite know what there is to work with and, for example, does not know what supports will be available from the State. It creates a degree of stress that could be dealt with by additional information and an assurance that there is proper management and proper investment for funds that are available. Even having the knowledge of what is available will be important for such persons.

Significantly, the report charts an approach but there is a difference between influence and power. We are acutely aware of that on this side of the House. The power to do things lies on the Minister's side of the House. If one thing was to come from today's debate, it should be a commitment by the Minister to an earlier delivery of the changeover to the new system, which is nestled in the UN convention. It is critical that this be accelerated.

Deputy Catherine Connolly

I thank the members of the Committee on Justice and Equality for all their work, in particular the chairperson. I also welcome the visitors to the Visitors Gallery.

I want to put this in perspective. When we are talking about money invested by the Courts Service, I note its annual report for 2018 referred to almost €2 billion, or €1.929 billion to be precise, and I am sure it has gone up since then. That is not all for wards of court and it includes a number of different categories, including residential redress board cases, minors, the compensation fund and so on. Under that fund, there are 2,864 wards of court and the value of that is €1.38 billion, which is not insubstantial.

If we are talking about that type of money, then we have to talk about accountability and supervision. I am acutely aware, given my own background, of the separation of powers and the role of the courts and I want absolutely no interference with them. That said, we are talking about accountability. The Minister said the accounts are audited and that that is oversight. If that was the case, there would be no need for the Committee of Public Accounts to sit every Thursday because all of the accounts are audited. However, we still have oversight through the Comptroller and Auditor General. I am not sure why the advice of the Attorney General took nearly 20 years, given that, going back to 2000-02, it was mooted that the Comptroller and Auditor General should have jurisdiction over these accounts. Repeatedly, different reports said that should happen but it has taken this long to get the legal advice. The Minister might clarify precisely when the legal advice was asked for and given.

In regard to public moneys, the Chairman of the Committee of Public Accounts has made the point that it is public money. Some of it is certainly public money but some of it is not. Some of it belongs to people who, for one reason or another, had to be made wards of court and their estate and their money was minded by the courts. However, much of the other money is public money that is awarded. I ask the Minister to clarify when he got the advice, when he asked for it and, moreover, what changes there may be to that advice in the context of the 2015 Act, when it is fully implemented, given we will no longer have wards of court. As I understand it, every single ward of court will be discharged, albeit with different levels of assistance. What are the consequences and implications of that?

This report of February 2018, which has already been gone into in detail by Deputy Ó Caoláin, contains six recommendations. That report came on top of a report by the National Safeguarding Committee which is dated December 2017, although I do not know when it was published because there is often a difference between the date on the report and the date of publication, as we know from the Health Service Executive and Tusla, in that one does not bear a resemblance to the other. In any event, that detailed report, "Review of current practice in the use of wardship for adults in Ireland", had 18 findings and 38 recommendations, to which I will return. The report from the Committee of Public Accounts in July 2015 had six recommendations and the report which is under discussion today has six more recommendations and, of course, all of the recommendations overlap. There are also recommendations from Inclusion Ireland, which I also thank.

I have put this in perspective in regard to the numbers and the money. Let me put it in perspective in regard to the Council of Europe which way back in 1999 set out:

The fundamental principle underlying all the other principles, is respect for the dignity of each person as a human being. The laws, procedures and practices relating to the protection of incapable adults [I have a difficulty with that wording] shall be based on respect for their human rights and fundamental freedoms.

A recent judgment from England, which has gone further than us in its protection of people with disabilities in this particular area, means they come under the UK Comptroller and Auditor General, although I realise there is a different system under a written constitution. In 2015, Judge Peter Jackson stated:

As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an 'off-switch' for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important.

Deputy Catherine Murphy referred to paternalistic attitudes. That certainly jumped out at me, as a woman, as I read all of these reports. Yes, we have made progress and we have the Act of 2015, although, unfortunately, almost four years later it has not been implemented and we still have no definitive date, although the Minister has told us it is 2020. There will then be another three years of a rollout, where all the wards of court will be reviewed. Of course, that legislation came after a very long delay. We are talking about legislation going back over approximately 150 years and using inappropriate words like "lunacy" and "lunatics". It has taken a huge effort to get as far as 2015. We were disgraced across the world because while we signed the UN Convention in 2007, we did not ratify it until 2018 and I understand we were the last country of the European Union to ratify it. We still have not ratified the protocol and, of course, without ratifying the protocol, although the Minister might correct me on this, there is no remedy if somebody goes forward under that UN convention.

In regard to the language used, there was talk last week about the mental health legislation of 2001 and about the need to review it because it is not up to date. The extraordinary thing is that there are a whole raft of protections for somebody with a mental illness under that legislation, although it is still inadequate in the 21st century. However, much more protection is offered than is offered to any ward of court. When we look at a ward of court, we see a judge making a decision in the best interests of that ward, but the voice of that ward is really never heard. That ward is not even given a copy of the court order and I understand he or she is not given a copy of the medical reports, because the judge making the decision and the whole system think it is better that somebody who is going to be made a ward of court should have as little knowledge as possible.

I have looked through the recommendations. I mentioned the Comptroller and Auditor General and why the advice is coming now and what it is based on. There is an overlap with all of the recommendations. I want to highlight the findings of the National Safeguarding Committee because they include the recommendations made in the justice committee report. As I said, there are 18 findings, all of which are worth looking at. Although I will not read all of them, it is stated:

The Voice of the Ward is not heard during an application for wardship...

There is no automatic system of providing Respondents (prospective Wards in an application for wardship) with independent legal or non-legal advocacy...

When a person is made a Ward, he or she does not receive the order of the court. In one case, a Ward requested a copy of the order but the Office of Wards of Court declined to give it to them partly on the grounds that it would be difficult to understand. [That is some communication and some decision-making skills.]

There is no system of review of Wards. There is no system of unannounced visits or otherwise... There is an excessive reliance by the Office of Wards of Court and the General Solicitor on information from the Ward’s carers...

I wish I had more time. The findings are worth looking at and there are also all of the recommendations. The findings continue:

There is no transparent protocol of complaints to the Office of Wards of Court...

There is considerable confusion and lack of understanding around the Ward of Court system and what it means for individuals.

I would always say the HSE has a conflict of interest or at least it should be closely examining whether it has a conflict of interest on each occasion where it brings an application. The findings also state: "The HSE has no transparent protocols about when and why it will instigate wardship proceedings and also has no centralised guidelines", and so on and so forth.

We then come back to the Act of 2015, which has not been implemented. Shame on us that it has taken so long. At this point in time, more applications are being made for wards of court that are absolutely unnecessary and will have to be undone when the legislation is finally in operation.

It does not make sense on any level, but what does not make sense at all is the feeling on the ground among the most vulnerable people in regard to the communication by the Courts Service. I understand their point of view. I have read what they had to say in regard to the losses and the Mazars report. I can see their argument. There are no grounds for the absence of good communication, particularly as we enacted the Assisted Decision-Making (Capacity) Act 2015, which will be rolled out, presumably, in 2020. These are issues that should be taken very seriously and there are many more.

I support the committee's recommendations, which are very basic. I understand that the recommendation that this fund be brought under the remit of the Comptroller and Auditor General is a little complicated but why was this not made clear long before now? Can we have clarity around it now?

Minister for Justice and Equality (Deputy Charles Flanagan)

I thank all the Deputies for their contributions and I thank Deputy Ó Caoláin, in particular, and his colleagues for their work on this most important issue.

A number of very serious allegations have been made, in particular by Deputy McGuinness, and I am keen that they would be dealt with. It is not the first time I have heard Deputy McGuinness make these allegations. The Deputy spoke of the need for accountability, with which I agree, but I challenge him on the basis that such accountability is in place. The Deputy also spoke of the need to involve the families. I agree and again I point to such procedure and practice being in place. The Deputy alleges poor investment. I say, "Not so". I ask him for evidence and I point to the Mazars report. Deputy McGuinness did not give the evidence. I have heard him make these allegations time and again. I ask him to engage with information that he seems to have. I expect that a responsible Deputy would have evidence and information to back up allegations of a very serious nature, which Deputy McGuinness continues to make. He makes allegations of bad management. Again, I say "Not so" and I point to the investment performance. I reiterate that the Courts Service is happy to engage and keen to be apprised of evidence which Deputy McGuinness, or any other Deputy who has raised this issue, are in a position to provide, or indeed any information. As Minister, it is my expectation that the Courts Service will engage. It wishes to engage and it is happy to engage. I would regard it as a function of the Courts Service to engage having regard to its involvement in the matter.

Deputy O'Callaghan is right in his commentary on the Mazars report and the review. The 63 cases identified are cases that had been identified by the Committee of Public Accounts and the Joint Committee on Justice and Equality. The need for engagement was also implied in Deputy O'Callaghan's contribution. I would ask people who remain dissatisfied and upset to engage to ensure that a process of information can be provided and that questions can be answered, because I believe they should be answered.

I say to Deputy Fleming - I am sure he will understand this - that it is not the judges who manage the court funds. There is an engagement on the part of professional fund managers. They act as advisers and they are appointed by the Courts Service. Again, they are people who are engaged in a thoroughly professional capacity. This is a point that was also referred to by Deputy Catherine Murphy. On fund governance and performance, I see no reason we cannot be satisfied that the management, governance and performance compares favourably with international best practice. I do not accept Deputy Fleming's criticism of the Courts Service. It is not only unfounded, it is somewhat unfair. The Deputy mentioned, as did Deputy Catherine Murphy, the role of the National Treasury Management Agency, NTMA. Both Deputies will be aware that there is a representative of the NTMA on the Courts Service investment committee, who brings a certain level of expertise and experience. On the role of the NTMA, again, I would point to ensuring best practice in the performance of appropriate duties.

For the benefit of Deputy Sherlock and anybody else who may not be clear on this issue, the 63 cases which form the subject matter of the Mazars report were those cases which sold units from the growth fund during our financial crisis. If any cases were to incur losses, I believe they would be captured in this group. Again, I would refer people to the Mazars report and the independence of that report. However, as well as the 63 cases which were captured, I would remind members of the Joint Committee on Justice and Equality that requests were also made to interested parties to identify any other cases that might be the subject matter of questions or that might be appropriate for a further review. If there were issues by way of further supporting information and documentation, my understanding was that they would have been dealt with had the information been forthcoming. I would ask people to engage. I would ask Deputies who have been engaged on this issue for some time to engage with the appropriate authorities.

I want to assure Deputy Catherine Murphy that preparations are well under way in respect of the new regime. I am keen to ensure that the timeframe within which the appropriate new structures are to be set in train will be as minimal as possible and that every effort will be made to advance matters. In this regard, I point to the high level steering group that has been established. Deputy Fleming is right that there is a role for a number of stakeholders and Departments, including the Department of Justice and Equality and the Department of Health, the Mental Health Commission and the Courts Service. Recently, my Department funded a number of researchers for the National Disability Authority, NDA, to do work on codes of practice and arrangements. The Mental Health Commission has engaged a consultancy firm to develop a detailed costed plan to operationalise, as soon as possible, the decision support service. In June of last year, my Department engaged an external legal expert to assist in the preparation of the draft regulations. That is an important body of work.

The issues that Deputy Connolly referred to will be addressed in the context of the new regime when the new Act is fully operational. Work is under way to ensure that will take place as quickly as possible. It is important that the new regime be specifically designed to meet the needs of people with age-related conditions, intellectual disabilities, acquired brain injuries and mental health issues. The Act offers an appropriate range of services to allow for support options to assist people in maximising their decision-making capacity.

I regard the issues raised in this debate with the utmost seriousness. I thank the Joint Committee on Justice and Equality and the Committee of Public Accounts before that for engaging on this issue. Having listened to Members and acknowledged a measure of dissatisfaction on the part of some, notwithstanding the preparation of the new regime and the Mazars report, I am keen to ask the Courts Service to consider if a further review might be warranted because I need to ensure that we have a system that families have confidence in, especially people who are dealing with wards of court, all of whom are in a position of great vulnerability. I ask families of those involved who still have a grievance if they would be in a position to provide evidence and details on the matter of the depletion of funds. I will ask the Courts Service to continue to engage to ensure that outstanding issues can be dealt with.

Deputy Caoimhghín Ó Caoláin

I thank the Minister and colleagues who have participated in this important debate. I would like to reflect on a number of points. I welcome the initiation of Parts 1, 2 and 3 of the Civil Liability (Amendment) Act 2017 last October, providing for periodic payments, which I believe is an important development that could constructively help to avoid some of the more serious situations that have given rise to the committee's address of this issue.

In his opening remarks, the Minister went through a series of recommendations in the report. The first of his remarks related to an independent third party carrying out an examination of the particular committees or committee funding for certain wards of court. The Minister referred to the appointment or engagement by the Courts Service of Mazars. It is important that, in the Courts Service's attendance and subsequent correspondence with the committee, it advised us that it would take this step. On behalf of the committee, I wrote to the Courts Service and requested that it would not proceed but that it would allow the committee to complete its deliberations and formulate its recommendations, whereupon appropriate steps could be pursued. We would have, at all times, believed that it was essential that the identification and appointment of an independent third party to carry out such an examination would be by agreement between the Courts Service and the individuals represented by Justice for Wards. There was no such engagement or consultation; there was only exclusion. That is not what the joint committee wanted.

It was regrettable and the committee found it unsatisfactory that the Courts Service proceeded as it did, ignoring its appeal, which was still in the process of considering this issue. The Courts Service acted unilaterally and with disrespect to the wishes of the joint committee, which it had only a short time previously appeared before as a witness on this issue. I do not question the professionalism of Mazars in carrying out its work but the process was flawed. It was contrary to the wishes of the committee and it excluded the Justice for Wards families. We believe that exercise should still be carried out and that the families should be fully involved. The Minister is asking for evidence to present but that request can best be made and fulfilled in the context of the full implementation, to the spirit and the letter, of the first recommendation in our report.

On the recommendation on the issuing of financial statements and, following on from the presentation of the Courts Service at the committee, the issuance of annual financial statements, my understanding is that these are not statements so much as a statement of a figure or balance. In some instances, many of which apply to the families concerned, it does not include the full detail of activity over the relevant period, whether for 12 months or more frequently. That simply does not provide the transparency and information that the aggrieved families feel should be proffered. Statements are now being provided but more detailed information must be shared, showing full activity, deductions, taxes and so on that may apply in any period covered, at least annually.

In the third recommendation, we talk about those wards who are in a perilous financial position with funds almost exhausted. I believe that it is not good enough to say that a State agency will respond to the needs of those affected. There needs to be a more proactive person or persons who have been identified to go to about the matter. Those people should have the necessary knowledge and skills to address those needs properly and assuage the fears of that body of parents and siblings who, moving on in life, have a real fear for the future of their loved one who does not have the capacity to speak up or provide for their own needs.

It is fine for those who can, but we are looking at people who do not have the capacity in the first instance, and we are looking at those around them who are concerned because of their time of life and who have given of their best years in the service of our society and in support of their loved ones. We need to simplify and to make things happen for them in a proactive way and there is no evidence of that.

Our view is that recommendation 4 on the new decision support service must be established and fully operational as soon as possible. The Minister states that most of the provisions of the Assisted Decision-Making (Capacity) Act will be rolled out in 2020. That suggests to me that not all of the provisions of the Act will be rolled out in 2020. It is at the core of the appeal, which I make again on behalf of the Oireachtas Joint Committee on Justice and Equality, that we see real prioritisation to ensure the speediest possible progress of the introduction of a decision support service. That is at the very core of it. The Minister referenced in the course of his opening remarks that there was a Revised Estimate with an additional provision of funds to assist that project to move forward. The great fear is that in spite of the date for the introduction of the critical element at the core of the decision support service, it will not happen before the end of 2020, and like so much else it will drift on beyond it. We should not forget that there is a further delay period in terms of the transition from the wardship scheme into the decision support service that can go on for at least another three years. We are talking about at least another four and a half years down the road before some of the families will find themselves in a new situation and engagement. That is not good enough. The matter needs to be addressed with the speed and urgency that their time in life and the needs of their loved ones clearly demand.

I wish to respond to what was said in response to recommendation 5 and the Attorney General advising that wardship funds are not public funds and that involvement by the Comptroller and Auditor General could undermine the independence of the courts and Judiciary. I noted that the Minister stated in his closing remarks that the fund managers or advisers are professional and outside the core functions of the Courts Service. They are not judges. I wonder at the advice of the Attorney General. The people who make the decisions on all of this are not members of the Judiciary. They are professionally employed to carry out specific functions, albeit by the Courts Service. I question the Attorney General's opinion that for the Comptroller and Auditor General to have oversight over the process would in any way undermine the independence of the courts and the Judiciary. That does not stand up and it really-----

Deputy Charles Flanagan

I will write to the Deputy on that particular point because I cannot address it now. I will write him a letter.

Deputy Caoimhghín Ó Caoláin

I welcome that. I am making the point that I believe it could be revisited and re-evaluated. It is about having the political will to make it happen because it is something that has been identified not just by the Joint Committee on Justice and Equality but, as other colleagues have indicated, going back over at least a couple of decades. We need to have certainty on the issue, and if it is possible, it is better to do it than always to say there is a reason not to proceed.

The United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, was ratified in April 2018. It was also indicated to the Joint Committee on Justice and Equality in January of that year by the Minister of State, Deputy Finian McGrath, that there would be simultaneous ratification of the optional protocol, but that did not happen. It still has not happened. Having the UNCRPD without the optional protocol is like saying a person has certain rights but, unfortunately, he or she will not be able to enforce his or her entitlements as we are holding back on that.

So much needs to be done. I appeal to the Minister to heed the very thoughtful contributions of Members here today and to be mindful of the great hurt the people in the Visitors Gallery bear with them daily because of the position their loved ones are in.

Question put and agreed to.

The Dáil adjourned at 6.15 p.m. until 2 p.m. on Tuesday, 9 July 2019.