As the Deputy will be aware, the UN Convention on the Rights of Persons with Disabilities and more broadly the Universal Declaration of Human Rights, address the right to equal treatment before the law. The UN Convention provides that people with disabilities should have the same rights as everyone else and should be provided with the practical supports to make that a reality.
As the Deputy will also be aware, the legal framework for persons who are deemed to lack capacity is currently undergoing significant reform with the current system of wardship being phased out and replaced with a more modern system focussed on assisting and supporting persons who may lack capacity. This new legal framework is provided for under the Assisted Decision-Making (Capacity) Act 2015 which was enacted in December 2015.
The 2015 Act provides a modern statutory framework to support decision-making by adults with capacity difficulties. It will repeal the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871. The current adult wards of court system will be phased out and replaced by a less intrusive system which offers a continuum of options to support people in maximising their decision-making capability.
Part 6 of the 2015 Act provides for the phased transition from adult wardship to the new support framework. It provides for the review by the wardship court of the capacity of all current adult wards within three years of the commencement of that Part of the Act. Following a review of his or her capacity, the ward will be discharged from wardship and depending on the outcome of the review the wardship court may:
- Declare that the ward does not lack capacity and immediately discharge the ward from wardship and order that the property of the former ward be returned to him/her.
- Declare that the ward lacks capacity unless a suitable person is made available as co-decision maker to make one or more decisions. Once a co-decision making agreement is registered the court shall immediately discharge the ward from wardship and order that the property of the former ward be returned to him/her. If there is no suitable person to act as co-decision maker or the co-decision making agreement has not been properly registered within a period set down by the court, then the court shall make orders as appropriate under Part 5 to appoint a decision making representative and order that the property of the former ward be returned to him/her once a decision making representative has been appointed.
- Declare that the ward lacks capacity even if a suitable person is made available as co-decision maker to make one or more decisions. The court shall make orders as appropriate under Part 5 to appoint a decision making representative and order that the property of the former ward be returned to him/her once a decision making representative has been appointed.
The 2015 Act provides for the setting up of the Decision Support Service within the Mental Health Commission. New administrative processes and support measures, including the setting up of the Decision Support Service must be put in place before the substantive provisions of the 2015 Act, including Part 6, can be commenced. A high-level Steering Group comprised of senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the Decision Support Service, is overseeing the establishment and commissioning of the Decision Support Service and this work is ongoing.
The key preparations are being put in place under the oversight of the Steering Group to allow for commencement orders for the substantive provisions of the 2015 Act to be made when the Decision Support Service is ready to roll out the new decision-making support options. Ms Áine Flynn was appointed Director of the Decision Support Service on 2 October 2017. The Director is working in a very determined way to get the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations in place in order that the Decision Support Service can be up and running as quickly as possible. There are many complex strands to this work, including involvement of multiple organisations. Every effort is underway to ensure that the Decision Support Service has all necessary capacity to open for business as soon as possible.
The Decision Support Service is not yet operational but every effort is underway to ensure that the Decision Support Service has all necessary capacity to open for business as soon as possible. While the Decision Support Service has been working towards being operational and ready for the commencement of the main provisions of the Act in 2020, the situation is being kept under review as the preparatory work on implementation moves forward.
The 2019 Revised Estimates Volume provides for an allocation of €3.5 million in the Justice and Equality Vote for the establishment of the Decision Support Service.