Joint Committee on Disability Matters díospóireacht -
Thursday, 20 May 2021

Assisted Decision-Making (Capacity) Act 2015: Decision Support Service

Chairman

The purpose of today's meeting is to discuss the Assisted Decision-Making (Capacity) Act 2015 and the establishment of the Decision Support Service, DSS. On behalf of the committee, I extend a warm welcome to representatives of Decision Support Service: Áine Flynn, director; Joanna Macklin, head of the panel of management; Kate Frowein, head of registration and supervision; Patsy Fitzsimons, head of complaints and investigation; and to Mr. Ian Grehan.

I remind members that they are only allowed to participate in this meeting if they are physically located in the Leinster House complex or the complex in the convention centre. If members are joining the meeting remotely, I ask them to confirm whether they are on the grounds of the Leinster House campus or the convention centre prior to making a contribution. For anyone watching the meeting online, witnesses are accessing the meeting remotely due to unprecedented circumstances. I ask everyone to bear with us should any technical issues arise.

Witnesses are directed that only evidence connected with the subject matter of the proceedings should be given and are asked to respect the parliamentary practice to the effect that they should not criticise or make charges against a person, persons or entity by name or in such a way as to make him, her or it identifiable. I advise witnesses giving evidence from a location outside of the parliamentary precincts that the constitutional protection afforded to witnesses attending to give evidence before committees may not extend to them. No clear guidance can be given as to whether or to what extent the evidence given is covered by absolute privilege of a statutory nature. Persons giving evidence from other jurisdictions should be mindful of their domestic statutory regimes. If witnesses are directed by the committee to cease giving evidence in relation to a particular matter, they should respect that direction.

Members are reminded of the long-standing parliamentary practice not to comment on, criticise or make charges against a person outside the House or an official in such a way as to make him or her identifiable. I call Ms Flynn, director of the Decision Support Service, to make her opening remarks.

Ms Áine Flynn

I thank the Chair, Deputies and Senators for the invitation to me and my colleagues to come before the committee. I have sent on my opening statement.

In my opening statement, I propose to set out the key reforms introduced by the Assisted Decision-Making (Capacity) Act 2015, to provide an update on the Decision Support Service, DSS, establishment project, including timelines and dependencies and throughout to comment on how the 2015 Act interfaces with the United Nations Convention on the Rights of Persons with Disabilities, CRPD.

The Assisted Decision-Making (Capacity) Act 2015 is significant and long-awaited legislation. According to its Long Title, it is: "An Act to provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or in the future." The signing of the Act on 30 December 2015 followed a protracted legislative process and extensive consultation and it has been broadly welcomed as reforming, human rights-based legislation. On enactment, it was described by Inclusion Ireland as "a seismic cultural shift away from a paternalistic and 'best interests' approach ... to a rights-based approach of choice, control and consent". The Act applies only to adults and, according to early estimates provided by the Department of Justice, as many as 220,000 adults could potentially benefit from the new statutory framework. This figure includes adults with decision-making capacity difficulties due to intellectual disability, acquired brain injury, enduring mental illness and age-related cognitive impairment. It would be wrong, however, to presume that any one of those 220,000 people will necessarily come within the ambit of the Act. That will depend on their individual circumstances. Equally, it would be a mistake to think that this legislation is targeted at or belongs to a particular cohort of people. Any of us could experience difficulties with our decision-making capacity in the future due to illness or injury and the Act provides important tools for advance planning. Therefore, this is an Act for everyone.

Although fully enacted, the 2015 Act is largely not yet commenced and intensive work to prepare for commencement is ongoing. Commencement of the Act has been identified as a priority in the current programme for Government and essential to compliance with CRPD. The 2015 Act is regarded by the State as the principal legislative reform required to give full effect to its obligations under Article 12 of the CRPD, which requires that: "States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." I am aware that other stakeholders who have appeared before this committee have called for the Act to be operationalised as a matter of urgency and their impatience is understandable.

I turn to the key reforms contained in the 2015 Act. These may be summarised as follows. The first is the abolition of wardship. The Act abolishes the wards of court system, which currently operates under the Lunacy Regulation (Ireland) Act 1871. When a person is taken into wardship, the court declares the person to be "of unsound mind and incapable of managing his or her person or property". This has been described as a blunt instrument. In 2019, the Supreme Court acknowledged that an order for wardship can deprive a person of the power to make many of the choices which are fundamental and integral to day-to-day life and that orders can be over-broad in their effect and disproportionate in their scope. Following commencement of the 2015 Act, there will be no further applications for wardship, and all current adult wards will have their cases reviewed by the wardship court within three years. These wards may have their assets and their autonomy fully restored or, where appropriate, will transition to the new supports available under the 2015 Act. The DSS understands there are approximately 2,300 such adult wards at present.

The Act also repeals the Marriage of Lunatics Act of 1811. This repeal came into effect on 1 February, so wards are no longer prohibited from marrying.

Significantly, these antique Acts from 1811 and 1871 are the only two pieces of legislation which the 2015 Act repeals. There is nothing else to repeal. The 2015 Act introduces structure and regulation to the area of decision-making and capacity, where currently we often operate based on custom and practice. There is a tenacious but unfounded proposition that the next of kin enjoys some presumed status as a substitute decision-maker who can supply or withhold consent on behalf of another adult. There is no legal basis for such a proposition.

A second key reform concerns the functional assessment of capacity. Under the Act, capacity is defined in a time-specific and issue-specific way. Section 3 states: "A person’s capacity [is] assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at [the] time." Incapacity is not a status as in wardship and is not linked to a medical diagnosis. The intention of the 2015 Act was to adopt a disability-neutral approach, so that a person lacks capacity in respect of a particular decision if he or she is unable to understand the information relevant to the decision, retain that information long enough to make a voluntary choice, use or weigh up the information, and communicate his or her decision, with assistance if necessary. This is already the applicable standard at common law, having been articulated by the High Court more than 12 years ago. The functional assessment has already been adopted in standards and policy, including the HSE national consent policy and the Medical Council’s guide to professional conduct and ethics.

Section 8 of the Act sets out a number of important guiding principles to ensure the rights of the "relevant person", who is defined as "a person whose capacity is in question or may shortly be in question in respect of one or more than one matter".

As we see it, the 2015 Act’s fundamental purpose is to ensure that the relevant person is supported to make his or her own decisions as far as possible. The guiding principles include the following: the presumption of capacity; a relevant person shall not be considered to lack capacity to make a decision unless all practicable steps have been taken to help him or her to do so; a person is not considered to lack capacity on the basis of having made or being likely to make an unwise decision; there is minimal restriction of the relevant person’s rights and freedom of action; respect for dignity, bodily integrity, privacy, autonomy and control over one’s affairs; respect for a person’s past and present will and preferences; and to act in good faith and for the benefit of the relevant person.

Respect for will and preferences has been held up by the UN Committee on the Rights of Persons with Disabilities as essential to Article 12. The committee has emphatically rejected any approach based on a person’s best interests. “Best interests” as a standard is not mentioned anywhere in the 2015 Act. It is notable and encouraging that the recent statutory instrument to facilitate the Covid-19 vaccination programme contains a requirement to ascertain the will and preferences of a person who cannot supply consent. We understand that this is the first reference to will and preferences in legislation other than in the 2015 Act itself. At present, the guiding principles apply only to “interveners”, as defined. The Decision Support Service, DSS, has called for an amendment to broaden the remit of the guiding principles so they are of general application.

I turn now to the three-tier framework of supports. Decisions under the Act are broadly defined and divided into two categories: property and affairs; and personal welfare, including healthcare. All such decisions are capable of being supported within the new graduated framework. At the lowest, least formal level on the framework, the relevant person may appoint a decision-making assistant to help to gather up and interpret information and communicate the relevant person’s decision. The relevant person is still the decision-maker. At the middle tier, a relevant person may register a co-decision-making agreement, under which specified decisions are made jointly with an appointed trusted person. At the upper level, there is provision for an application to the Circuit Court by any person who has a bona fide interest in the welfare of the relevant person. Foreseeably, the applicant will often be a family member or carer, or the HSE, as is the case in a significant number of wardship applications. The court may make a declaration that the relevant person lacks capacity in respect of a specified decision or decisions. The court may either make the decision or may appoint a decision-making representative to make decisions on behalf of the person, under the supervision of the DSS.

In its General Comment 1, the UN Committee on the Rights of Persons with Disabilities interpreted Article 12 as prohibiting substitute decision-making. At the time of ratification of the Convention on the Rights of Persons with Disabilities, CRPD, the State entered a declaration permitting the retention of substitute decision-making in appropriate circumstances and subject to appropriate and effective safeguards. Therefore, orders for substitute decision-making should be made as a last resort and only where lower-tier supports have been considered and discounted. The court must apply all of the guiding principles, having regard to the known will and preferences of the relevant person. Orders must be limited, where possible, in terms of time and scope, made subject to periodic review and may be re-entered before the court by the relevant person. In line with Article 13 of the Convention on the Rights of Persons with Disabilities, which guarantees the right of access to justice, the Act provides for the relevant person to be heard by the court and to have access to representation and to legal aid.

The 2015 Act also provides two tools for advance planning to allow a person to plan ahead in case he or she loses capacity in the future. First, enduring power of attorney, EPA, may already be created under the Powers of Attorney Act 1996. The scope of an EPA is extended under the 2015 Act so that an attorney may now be appointed to take decisions in healthcare matters. Attorneys under the 2015 Act will now be subject to a new form of supervision by the DSS. Second, advance healthcare directives, AHDs, are placed on a statutory basis under Part 8 of the Act, the part of the Act which is the responsibility of the Department of Health. The purpose of an advance healthcare directive is to allow a person to be treated according to their will and preferences and to provide healthcare professionals with information about a person's treatment choices. A person may also appoint an agent, known as a designated healthcare representative in the AHD, to ensure that his or her AHD is complied with.

Part 8 states that the Minster for Health may make regulations to provide for the notification of the making of an advance healthcare directive to the director of the Decision Support Service and for the director to maintain a register of advance healthcare directives. It is the view of the DSS that these regulations would enhance the operation of Part 8 and would benefit the person and healthcare professionals alike. However, we are informed by the Department of Health that the absence of unique health identifiers is an obstacle that must be overcome before these regulations can be written.

Certain other matters in Part 8 require attention by the Department of Health. The DSS and the Mental Health Commission have called for the amendment of a section which provides that an advance healthcare directive is effective if the person is detained under the Mental Health Acts and purporting to refuse mental health treatments. It is our stated view that this is discriminatory. The section dealing with the applicability of advance healthcare directives in pregnancy also requires review following other legislative changes since the Act was passed.

The 2015 Act establishes the office of the Decision Support Service within the Mental Health Commission, MHC. The MHC has proved to be a very good home for the DSS as it has important experience of applying reforming human rights legislation to develop new structures. The support of MHC colleagues has been invaluable to the DSS establishment project. The principal functions of the director are as follows: to promote public awareness in relation to the Act and related matters, including the CRPD; to provide information and guidance; to set up a website; to establish and maintain searchable registers of decision support arrangements; to regulate and supervise the activities of “decision supporters”; to receive and investigate complaints; to appoint four separate panels of suitable persons to assist with certain statutory functions; to furnish reports to the Ministers and make recommendations on the operation of the Act; and to act as the central authority under the Hague Convention on the International Protection of Adults. The director may also publish a suite of codes of practice to provide guidance, including guidance for certain categories of professionals. In general terms, the Act provides for significant regulation and oversight of the new support arrangements. This is in keeping with the requirement under Article 14 of the CRPD to ensure liberty and security of the person.

I will now give an update on the DSS establishment project and our dependencies. Responsibility for the 2015 Act and the DSS transferred from the Department of Justice to the new Department of Children, Equality, Disability, Integration and Youth in October 2020. The level of engagement with and the support of the new Department and of the Minister of State with responsibility for disability have been very welcome. An interdepartmental steering group for the implementation of the DSS has been in place since 2016. It is now chaired by the Department of Children, Equality, Disability, Integration and Youth, with membership from the MHC, the DSS, the Courts Service, the HSE national office for human rights and equality policy, the Department of Health and the Department of Justice. I was appointed to the post of director in October of 2017 at a time when the only blueprint for the establishment of the DSS was the Act itself. The project is well under way and comprises six work streams, with 28 sub-projects. Progress has continued without interruption while we have been working remotely during the last 14 months. The project is subject to detailed oversight and reporting requirements, internally and externally.

Our vision for the DSS is for a person-centred, accessible service with a digital-first approach, while we must accommodate the challenges that some of our stakeholders may experience with digital literacy and connectivity. Key milestones to date within the establishment project have included the following: the appointment of an experienced DSS senior management team, who accompany me today; development of our organisation design and workforce planning strategy; mapping of approximately 60 detailed business processes; policy development; development of proposals around fees for our services, noting that costs must not be a barrier to those accessing our service; commencement of the ICT project with departmental approval, and a provider has been procured and is in place since July 2020; the review of codes of practice drafted by the National Disability Authority and the HSE ministerial working group, in preparation for public consultation; the launch of our website in August 2020; demand forecasting to support our planning activities; preparations for panel recruitment; extensive and diverse stakeholder engagement, including the procurement of Inclusion Ireland to facilitate focus groups of potential future service users; and development of our communications plan.

At the request of the Department of Justice, a detailed 24-month, costed plan for the establishment of the DSS was presented to the interdepartmental steering group at the beginning of 2020.

This proposes that the DSS would commence operations in mid 2022. The plan was approved by the steering group members. The requested uplift in budget allocation was achieved for 2021 and the Department of Children, Equality, Disability, Integration and Youth has publicly committed to a date for full commencement of the Act, which is 20 June 2022.

Regarding dependencies, as set out in our 24-month plan, the timeline for commencement of the DSS is subject to a number of external dependencies that affect the critical path of the project. These include: budget allocation; sanctioning of posts as per our workforce plan; finalised amending legislation; finalised regulations to provide for multiple procedural and documentary matters; and decisions on fees for services and terms and conditions for panel members.

The Bill to amend the 2015 Act has been granted priority in the current legislative programme. The amendments will address certain matters, some of a technical nature and others more substantive. It is hoped that these will ensure the better functioning of the Act. In particular, it is proposed to improve the position of current wards of court with regard to access to the court, to representation and to ongoing periodic review.

The readiness of the DSS is not the only precondition to commencement of the Act. The 2015 Act will have impacts on stakeholders, including the Courts Service, the Legal Aid Board, legal and financial service providers and their regulators, An Garda Síochána, disability services, and generally across health and social care. There is much preparatory work to be done in these sectors. There must be support for training and education and the re-evaluation of policy and standards in line with the 2015 Act. Appropriate supports are required to ensure that costs are not a barrier, where, for example formal legal documents and capacity statements are required to support the registration of arrangements with the DSS.

The DSS welcomes the recent amendment of the terms of reference of the interdepartmental steering group so that its purpose is not just to prepare for the implementation of the DSS but for the commencement of the Act. It is our view that the appointment of a mandated single point of contact in the Department of Health to co-ordinate preparations for which it is responsible is now a matter of some urgency. As part of our statutory functions, the DSS remains committed to working with all relevant stakeholders to provide information and to promote organisational change. We look forward to further engagement with this committee.

Chairman

I thank Ms Flynn for her comprehensive overview.

Deputy Jennifer Murnane O'Connor

I thank the witnesses and Ms Flynn for the comprehensive report. It was excellent and contained much important information. I have three questions. We have seen approximately 1,200 people taken into wardship since the enactment of the 2015 legislation, yet because of this slow pace, various levels of decision-making supports are not operational. Wardship is, in my opinion and the opinion of many, including Ms Flynn, a blunt instrument. We all agree that it is important that it be replaced by a new graduated framework of supports aligned to a person's need. While it is disappointing that this is taking so long, it is welcome that we are seeing real progress. The guidance from the President of the High Court regarding vaccines and wards, together with the memo from the HSE, was a welcome development in assisting healthcare professionals with approaching the matter of consent with regard to public health measures. That was an issue for me. It led me to think about how Covid had impacted us so much. We had to take a minute because the law stipulates that consent is required for vaccination. Some issues were thrown up which would highlight the importance of this Act.

We were expecting the establishment of the decision support service next year. Has Covid had an impact on that? There was an issue of funding. Where are we now? Is there likely to be more delay? It is important to properly reconcile the Constitution, the UN Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.

We must support all adults who have difficulties with their decision-making capacity for medical access. Can Ms Flynn talk me through the costs? She gave some figures there. I have concerns about costs involved which are not guaranteed under this legislation. Medical card holders would be covered for any costs relating to supporting documentation from doctors but what about those without a medical card? Have we a plan to make this affordable?

There was a report entitled Mind the Gap. It was compiled by a researcher at the Centre for Disability Law and Policy at NUI Galway's Institute for Lifecourse and Society, and was commissioned by the Ombudsman for Children's office. It stated, "the supports offered under the Assisted Decision-Making (Capacity) Act apply only to adults, even though children and young people with disabilities might also benefit from specific and tailored decision-making supports, especially during the transition from childhood to adulthood". Ms Flynn said that this is an Act for everyone. Is that being discussed, especially at the age where a child becomes an adult? I welcome that Ms Flynn spoke about awareness and websites. I thank her for the valuable information.

Ms Áine Flynn

It is concerning that since the Act was signed into law, people have continued to be admitted to wardship in some numbers. I mentioned in my presentation today that there would be immediate provision for the review of all current adult wards of court. We believe that, in total, they number something like 2,300. That is a matter to be managed by the Office of Wards of Court, which will organise for those cases to be brought before the wardship court. They are all entitled to bring themselves up the list if they want. They do not have to wait for the wardship court to get to them and can bring their own applications to the court to have their cases reviewed and decisions made about their capacity and their need for further supports. Many may choose to take that route.

The Deputy asked whether Covid-19 has had an impact on our establishment project. We were able to mobilise quickly. Perhaps it was an advantage of being in project mode rather than business as usual. I offer my gratitude to colleagues who were able to make it happen. We were able to adjust to remote working quickly and almost without interruption. We were able to move on to remote working platform and the project was continuous.

I also welcomed the comments of the President of the High Court, the structure of the roll-out of the vaccination programme and the welcome use of the words "will" and "preference" in the context of people's consent to be administered the vaccine. That was novel and we were glad to see it.

We are sensitive to the fact that costs must not be a barrier to service. This cannot be something which only those of means are able to access, especially when one thinks of the importance to all of us of being able to plan ahead. That is why I have described it as an Act for everybody. We have presented proposals on fees for our services. The Act also provides that there can be an abatement or full waiver of fees in certain circumstances. That is important. We have also received assurances that there is no imperative that we be a self-funding service. That will be reviewed over time when we look at how we deliver when in business as usual mode, but the Minister of State, Deputy Rabbitte, said at an event of ours on 13 April that costs should not be an impediment. That was very much a theme. The Deputy asked how people of limited means, not just medical card holders, will be able to access services. The Minister of State certainly had something to say about that.

There are certain arrangements under the Act which require a formality of presenting documentation, including a statement by a legal professional, and by medical and other healthcare professionals. We are keen for people to be able to access those statements without costs getting in the way. In the UK, the Office of the Public Guardian has looked at it and has been keen to make its service, which is narrower than ours, accessible.

The Deputy mentioned the Centre for Disability Law and Policy's Mind the Gap study. I was aware of its comments about how anyone under 18 is not served by this Act. That is correct. This is an Act which applies only to those over 18.

I am aware that in other jurisdictions with roughly comparable legislation, 16 and 17-year-olds are sometimes identified as a separate cohort and provision is made for those young adults. That has not been part of the conversation here. Again, it is something that may be kept under review.

Those minor wards who turn 18 years post commencement of the Act will enter in that transition period as well. They do not have to wait until three years has passed before they are considered adults and are able to benefit from the review. Those who age out, as it were, after the Act commences will also be due to have their cases considered in that transitional review period. The position of younger adults is something to keep an eye on.

Deputy Pauline Tully

I thank Ms Flynn for her presentation. I thank all of the guests for attending the meeting to inform us about the Assisted Decision-Making (Capacity) Act 2015 and the establishment of the Decision Support Service, DSS. We all recognise the importance of this matter, particularly in terms of the full implementation of the UNCRPD that, without this Act, cannot be fully realised.

My first questions concern the timescale. The Act was passed in 2015. Was it always foreseen that it would take seven years for the Act to be operational? Was there an issue with funding? What issues delayed the Bill, if it was delayed, or was that always going to be the timescale?

In terms of the role of decision-making assistant, co-decision-maker or decision-making representative, will the process of engaging with the service be straightforward and uncomplicated? How will people find information and access the service?

Does the DSS anticipate tension and possible opposition to the operation of the Act from family carers, especially those who care for family members with fairly complex disabilities who may feel, as next of kin, they know what is right for the person concerned? Will family carers end up, in some cases, as the decision-making representative? Is that possible or does it have to be someone who is neutral to the family? Sometimes decisions could be made by a person that are contrary to what other persons in the family feel is the right thing. If so, how can that situation be resolved? How will the service communicate with people who are not verbal or have extreme or complex disabilities?

I had a question about costs but I believe Ms Flynn has dealt with the issue when she responded to the previous speaker.

Ms Áine Flynn

In terms of the timescale, I hope I have conveyed the impression there was rather a lot to do. Quite honestly, when I came into the post, which was two years post commencement of the Act, I may have underestimated the sheer scale of what was involved. The Act is dense and complex legislation. It is ambitious and attempts more than comparable legislation in other jurisdictions. There literally was a lot to do and the direction from early days was to do it all at once. Some other Acts might be more amenable to an incremental roll-out but the decision had been taken, which was correct, that everything should come together and be green lit at once.

Having said that, we did hope it would be quicker. There were funding issues, which we have been open about. The direction was to do it quickly. We had a plan and presented budget proposals relating to that but we did not get what we sought in terms of our allocation in either 2019 or 2020. There was also some delay in achieving approval for our ICT project. Again, that was linked somewhat to budget allocation. There was a concern we would be committing to a vision for ICT without the funding to back it up. There were delays of that nature.

Things stepped up, improved and had a much better sense of momentum and political will at the beginning of last year when we were asked to present a 24-month plan to commencement. Ideally, we would have presented a 12-month plan to commencement and been resourced accordingly but it was considered at that point that a 24-month plan was realistic. That plan was presented, endorsed and we got the budgetary uplift we sought for 2021. A budget is only a year's budget so it will need to be backed up by a budget allocation in the coming year. We will be entering into the Estimates process shortly having regard to the fact that, for the second half of next year, we will be an operating service with all of the associated costs, including fees for panel members.

The Deputy asked about the three tiers and the possible complexity of having to engage with our service. We are very keen to ensure this is very much an accessible, public-facing and person-centred service. Accessibility is going to be key and it is with that in mind that we have engaged with focus groups to try to get a sense of how well we will be able work with them and so we will be properly alert to their needs. The CRPD would require that. The codes of practice will help with that but we are also producing easy-read guides and other guidance materials on which my colleagues are hard at work. We hope the engagement with us will be as straightforward as possible, and I can say a little more about that, if the Deputy wishes.

The Deputy asked about particular sensitivities family carers might have. We are aware of those. My colleague, Ms Fitzsimons and I have recently engaged in workshops with Family Carers Ireland and its concerns can be distilled down to this: life is hard enough, and it is. The task and ask of a family carer is no small thing. We are very sensitive, therefore, to their apprehension that this might create a further burden and create undue formality, costs and complexity, and that they have always been the decision-makers and now they are being asked to do so in a formal and regulated way.

Our message is that we will work with them on that. We are not setting people up to fail. At the same time it is to bring home that message that where they may have thought they had a formal and authorised decision-making role up to this, they really do not because next of kin does not mean anything. You do not have legal authority merely by virtue of that family relationship. Our message is that, with this Act, you have the opportunity to step into a formal, recognised and unarguable legal role, so you have security of tenure so nobody can argue about your right to be in the room, to access information and, if necessary, to be the decision-maker.

The Deputy asked whether, at that upper tier of support, it would be appropriate for a family member to be the decision-maker, and the answer is "Yes". The Act specifically spells out the court must have regard to the value of subsisting family relationships and to not interrupting those, as far as possible, having regard always to the wishes and value, the will and preference of the relevant person, himself or herself. There is a very clear role and a preferred role for the trusted family member or friend.

The Deputy asked about, and this is to be anticipated, whether there could be problems within the family dynamic, whether one family member will think a certain thing and the other will disagree. The Act sets out notice requirements so that it is not possible for one family member to get in there ahead of other siblings, shall we say. If we imagine a situation where siblings might have different and competing views about what is best for an elderly parent with age-related cognitive impairment, if one sibling were to attempt to apply to court and to step into that decision-making representative role, he or she cannot do so without putting other family members on notice. Those other family members have an opportunity to input or to object, and they can do it on the lower tiers of support as well.

There will be decisions to be taken. We will have to deal, perhaps, with objections that come our way, or the court might have to deal with objections to try to resolve difficulties. Those difficulties could arise post the registration of the arrangements in terms of complaints and investigations. Perhaps Ms Fitzsimons might want to say a word about how there will be provision for dealing with complaints and investigations, including alternative dispute resolution, which would be key to our processes.

Ms Patsy Fitzsimons

Yes. The Act provides for the resolution of complaints in an informal way as quickly as possible. We are, as part of our processes, setting up an informal resolution service within the DSS to help resolve those family conflict situations we anticipate will arise, because not everybody will agree on every point or every action a decision supporter is going to take. We will have trained staff in the DSS to help resolve those family disputes that will ultimately arise. If we cannot resolve them, then we will proceed to investigate the complaints and see if there is a need to go to court and have that person removed, ultimately, if needs be. Obviously, our first port of call is to resolve disputes as quickly and as early as we can.

Deputy Neasa Hourigan

I thank our guests for attending to discuss this important subject. Deputy Tully touched on a couple of the questions I had intended to ask. I was glad to hear about the consideration of carers because they are often such incredible advocates for the people they care for. The idea that this is a pathway towards an unarguable legal role is an important message to get across to families who might be a little worried about what it might mean. The volume of work the committee has ahead of it is considerable. That this legislation was passed in 2015 but will really take full effect only in 2022 is, I have to say, disheartening in terms of the rate of change. I hope there will be faster and better progress in this area.

I was struck by the point our guests made that this relates mostly to interveners and that they hope the remit could be broadened to give it a more general application. Will they expand on what that would mean for other Departments and other sectors of society?

Where an order is enforced, who or what body sets out the time and scope of the order? I refer in particular to the timing of the periodic reviews. Is there an appeals mechanism within that?

Ms Áine Flynn

I share the Deputy's view on timelines, to a large extent. We are committed to a timeline taking us up to commencement and, subject to the dependencies I mentioned, it is a timeline we hope to meet.

On the question about the scope of an order, it is a court order and the Act has quite a level of detail about that. We hope to engage further with court personnel and the Judiciary to provide input on training and a uniform approach insofar as possible, and a shared understanding of the Act and its ethos. The Act sets out time limits for a review of a declaration of incapacity. The declaration has to brought back before the court and kept under review. I think the recommendation is for every 12 months or, at the most, every three years where there is a perception that the person is not going to recover capacity. Even within that timeframe, the relevant person has a pathway back to court to seek to re-enter the matter and to have the court revisit the finding that he or she lacks capacity, and it can then revisit the decision-making representation order that has been put in place. The Act is quite strong on the business of review and the continuing right of access to the court, and that is important for all sorts of considerations relating to the Convention on the Rights of Persons with Disabilities, CRPD.

The other, lower tier arrangements are subject to periodic review by us as well. I refer in particular to the middle tier, the co-decision-making arrangement. We have to be satisfied that a person's capacity, as declared under that arrangement, remains the true position. There is quite a degree of oversight, and the Act in its drafting has been clearly person-centred in that regard.

To respond to the question on interveners, which relates to section 8 on the guiding principles under the Act, this has been something of a theme of ours and we have raised it with the Department of Health, and previously with the Department of Justice. I do not want to get too niche or technical about it but those guiding principles I mentioned are really important. They include the concept of will and preference, which is really at the heart of the Act. They apply to interveners as defined, and interveners in turn are quite narrowly defined under the Act. They are a category of persons that includes all the decision supporters I mentioned, the court, my own role and healthcare professionals carrying out a function under the Act. A person is an intervener when he or she is carrying out an intervention, which in turn has quite a narrow definition.

Why are we taking these guiding principles, which also govern how we even assess capacity, and narrowing them down to quite a fixed category of people doing fixed things? If this is about ushering in a new ethos and approach, why is it not just how we all do things in the future, relative to somebody who may have an issue with their decision-making capacity? That is an idea that has gone back and forth a bit, and while I do not want to speak out of turn, it may be addressed in the amending legislation.

Having said that, the ethos and the key ideas of autonomy and respect for will and preference are taking hold in any event. I mentioned that they can already be seen in other policy and standards, and they are infiltrating how we approach people who may have an issue with their decision-making capacity. They can also be seen in other standards throughout health and social care. That idea of a rights-based approach is taking hold. It has been a theme of mine that I would have liked to see those guiding principles have a general application, but there may be-----

Deputy Neasa Hourigan

I apologise for interrupting Ms Flynn but my time is almost up. To clarify, do those guiding principles apply to, for example, education professionals or healthcare support workers? Are there specific groups that Ms Flynn is concerned they do not apply to now?

Ms Áine Flynn

It would just be useful if they were of general application. They apply only to interveners as within that narrow definition. It is open to, for example, a solicitor dealing with somebody who has a question mark over his or her decision-making capacity to say those guiding principles are interesting but that they are over there and the solicitor is never an intervener because he or she do not fit within that definition. There will be codes of practice for them, largely informed by those guiding principles, that will help but my view is it might have been useful if the guiding principles had a broader remit.

Deputy Neasa Hourigan

I agree.

Senator Erin McGreehan

I thank our guests for attending and Ms Flynn for her comprehensive opening statement, which was excellent. Deputy Tully and other members asked many of the questions I had prepared. The DSS will have a great deal of co-operation with other stakeholders and many changes are coming down the road. Based on our guests' engagement with those stakeholders, how prepared are they? Might there be a backlog, with potholes that could be identified along the way? How are the stakeholders being resourced to deal with them and how can that be improved?

This will be a very significant, though welcome, change of mindset in regard to how we look after people who might need the Act. Does the DSS have a role to educate the general public on what the DSS will provide and to make us all aware of how we can ensure our loved ones are advocated for in the best way?

Ms Áine Flynn

The preparedness of other stakeholders varies, to be honest. The HSE group, for example, is a small team but it has been doing a great deal of work since before I came on board to reach out across health and social care and to educate people about the provisions of the Act and the cultural change the Senator mentioned. I think that, broadly speaking, there is receptiveness to that.

As for the practical preparations, as I mentioned earlier, it would be very beneficial if the Department of Health had a mandated single point of contact to co-ordinate its preparations, but thus far that has not happened. The Department is represented on the interdepartmental steering group and I acknowledge it is busy at the moment with a variety of concerns.

There is the potential for the health and social care sector to be most affected by the Act so it would be useful to have a sense that somebody is steering all of the preparations.

We meet a diverse range of stakeholders and I find that I generally have to go back to first principles every time, which I do not mind because this is complex and new stuff. The number of people who understand the Act and feel ready for it is relatively small. That is to be understood and we need to work with people.

In terms of a huge change in mindset, that landscape is improving. We often speak about a cultural shift but it is important not to overstate that. I am aware of a growing receptiveness to change but some people have reservations and it is important that we deal with them.

We are considering awareness raising of the importance of having an accessible and very much public-facing service so that people feel they can engage with us. We are already open for questions and are more than happy to take them. We get questions all of the time and our website provides information on the Act. We also have a section on getting ready that we endeavour to keep updated so that people feel prepared.

Deputy Violet-Anne Wynne

I thank all of our guests for attending and the information that they have given so far has been very extensive. I want to use my time to relay the frustrations of the people who have been impacted by the fact that the Assisted Decision-Making (Capacity) Act has been delayed in its commencement and the implications a delay has on individuals. The time that lapses between the introduction of legislation and its commencement can be years, which is hugely unfortunate. In addition, it makes the introduction of legislation slightly redundant. Stand-alone legislation seems like it is not good enough. We need commencement, implementation, resources and regulation.

I am aware of specific difficulties with the ward of courts process from families I have had the pleasure of communicating with about the implications that this has for them and their families. I welcome the point that has been made about the role of an existing carer or even a family member being afforded the opportunity to facilitate that decision-making capacity, and also that it has to be the will and preference of the individual in question. That aspect is hugely important because the provisions have created a bit of nervousness within families about what is in store once the legislation is commenced.

The Mental Health Commission, in its 2019 annual report, noted that the ward of court process has been determined to be insufficient in hearing the voice of the ward and lacks safeguards in the interest of the ward. Can DSS representatives discuss how the new service will ensure the voice of the relevant person?

There has been discursive conflict between the carers' interests and how carers have been depicted by designated adult protection officers, DAPOs, perhaps. The witnesses have said that they are aware of the matter so I will move on.

I welcome the abolition of the Lunacy Regulation (Ireland) Act 1871. It is hard to stomach that such archaic legislation held sway in a modern, 21st century Ireland. Mr. John Dunne, Family Carers Ireland, has expressed deep concerns about a distinct lack of meaningful consultation with many different stakeholders and is dubious that these issues will be resolved over the next 12 months. The organisation anticipates that anywhere between 10,000 and 25,000 people will want to register some aspect of a decision in court and he does not feel that many people will feel a direct benefit. Will that volume of applicants be dealt with in a timely fashion?

I noted that Ms Flynn stated earlier when discussing the commencement that it was decided to have a 24-month project. Please elaborate on why the project could not be more succinct and be for a 12-month period. I ask because I am conscious that the situation will have a knock-on effect on families who have really needed an intervention for the past number of years and for the Act to be commenced.

Finally, does the DSS put excess stress and pressure on family carers? The scheme relies on civil society to make it fly. The intricacies of the duties and obligations of family carers get increasingly nuanced and complicated as more policies come into play. Are there supports for family members who will take up the role in being able to implement decision-making effectively for the person in question?

Ms Áine Flynn

In a few moments, my colleague, Ms Frowein, will discuss numbers because we have done some forecasting and the Deputy mentioned the number offered by Family Carers Ireland.

The comments by Deputy on the voice of the ward have been very well made. I wish to briefly mention that there will be an amendment to the Act to improve the position of current wards of court, and to improve Part 6 of the Act, so that that voice is better heard in the context of the review of those current wards in terms of access to the court, representation and the same periodic reviews as the relevant person who is coming in brand new to the system. I hope that I have made sense. We have been assured that there will be access to a scheme of legal aid and we have spoken to the Legal Aid Board about its preparations.

The Deputy asked whether the 24-month project could have been shorter. I wish it had been a 12-month project. I suppose with speed comes extra cost and that is what we were asked to produce. We produced a 12-month plan but the 24-month plan was the one that was approved and considered realistic in terms of resources plus the scale of the task. In fairness, I mentioned that we have six different work schemes and 28 sub-projects. We are really busy getting from here to go live given that the direction is that we do everything at once, and that is the correct direction.

In terms of carers, it is important that we do not somehow fall into setting up carers and the Independent Living Movement Ireland against each other. There is no need for that tension to exist. I am very keen to address that narrative, where we can, and provide reassurance.

I am aware of the burden carers already carry. In my past life, I worked in a law firm that acted for carers and very often on trying to unlock access to appropriate services. I was aware of the particular frustration that carers encountered when they found that they were sidelined when a child turned 18 years so I am think that I am sensitive to the plight of carers.

Our intention is not to catch people out. We seek to work with carers if they move into decision-making roles to ensure that they are the best they can be and that there are appropriate supports to ensure that their access to the Act, when they need it, is streamlined.

There is a perception, I think, that really high numbers are going to have to immediately apply to move into these formal structures. That may not necessarily prove to be the case and I do not think that is what was foreseen or intended.

Ms Frowein may comment on forecasting and on what we think, based on our best estimates looking at raw data and some survey work that we have done or perhaps the realistic levels of demand on the Act in the early phase.

Ms Kate Frowein

The Deputy asked an interesting question. It is important to point out that the DSS is a totally new and novel service so there is no national data on the number of people who might need or benefit from our services. To repeat what Ms Flynn said earlier, there is no assumption that persons who are currently in receipt of certain services or have a diagnosis would immediately fall into the services of the Decision Support Service, or be presumed as needing those services.

Having said that, we have been looking extensively at potential people who may benefit from our services. We think that there could be between 15,000 and 20,000 people who could benefit from some of the top-tier services but, again, we would not see them immediately being subject to a court order.

It is one of the guiding principles that there would only be an intervention when it is necessary. There is a decision that needs to be made and a trigger to bring that into play. Based on our estimates, we think it could be around 1,500 to 2,000 people that would be in court each year and that there may be an order in respect of their capacity and in requiring the appointment of a decision-making representative. That would be around the top tier but there would be a much broader cohort of people who would benefit from other supports like the co-decision-making agreement or a decision-making assistance agreement.

Chairman

Senator Seery Kearney is substituting for Deputy John Paul Phelan.

Senator Mary Seery Kearney

I apologise as I am between two committees. That bilocation element means I may ask something that has already been answered but I am trying to avoid that.

The witnesses have spoken extensively on the ward of court and how that will work. I thank them. I am not clear whether families will have to apply to be the committee or insert themselves into decision-making on behalf of an existing ward of court. Will there be a pathway of transition out of that?

My next question relates to next of kin. I hear the witnesses and I think we need to do an information programme to explain to people that next of kin has absolutely no standing. I have had a number of cases in recent years where people do not understand that and cannot understand how they are excluded from information. We had a "Prime Time" documentary some years ago about a husband excluded from the care of his wife in a care home, where she needed constant care and he was excluded because, he alleged, he started making complaints in that context. It has a silencing effect on families at the moment. The way around that in current law would be to establish enduring power of attorney so there is somebody who can make decisions. However, that is very expensive. My concern is the system we are putting in place will rely on families having to make an application to court. Has consideration been given to ensuring there will be legal aid provision for that? Is there an easier way to create a pathway to court? Otherwise, those with means will have access to having a say in the care of their loved one while those without means will be left in some sort of wardship arrangement.

Ms Áine Flynn

In relation to current wards and the pathway out, there is provision for that review that must take place in relation to all current adult wards, numbering something like 2,300 to 2,500. Those applications will be taken by the wardship court, which can decide whether the person is to have his or her autonomy and decision-making restored to him or her or whether he or she needs to transition into one of the new supports under the Act. The new supporter under the Act could be the family member. He or she will be involved in that application, able to make representations and, if necessary, appointed as a decision-making representative. Families should not consider that they are to be sidelined in this process. The court will have the obligation under the guiding principle to hear from those closest to the relevant person and to look at existing family relationships.

I agree there is work to be done in addressing the established myth around next of kin. People can feel hurt and offended by this and there can be a perception that the Act is doing it to them when I would say the Act is the solution filling the gap that has always prevailed.

The Senator mentioned EPAs as the current solution. One can only make one when one has the capacity to do so. I recognise that advanced planning is not a route available to everybody. The Senator is correct that it can be an expensive structure to put in place currently. We are keen that costs are not a barrier to the service and the support under the Act. If all of us who can do so plan ahead, we may avoid the more onerous and off-putting process of having to go to court.

On supports around going to court, the Act amends the Civil Legal Aid Act. The amending legislation will further amend the Civil Legal Aid Act, so members should keep an eye on that. It makes provision for the relevant person to have fairly ready access to a scheme of legal aid. They do not have to satisfy all the conditions that would apply. Legal advice and legal aid is to be made available to other parties to Part 5 applications, including family members.

I hope the court process is streamlined as far as possible. We have engaged with court services to ask that the court rules be made as accessible as possible and that one form be sufficient, rather than many affidavits, motions and supporting documentation, so the path to court is eased for people and the costs associated with filing a court application are not an off-putting factor.

Chairman

I call Senator Flynn, in substitution for Senator Higgins. Is the Senator online? No. We may come back to Senator Flynn. Deputy Cairns is the next speaker.

Deputy Holly Cairns

I thank the witnesses for coming into the committee. I have a few questions. I will list them off and if there is not time to answer them, that is fine. Maybe there will be time at the end or a written response would be great.

First, I support what Ms Flynn said about the importance of carers not being pitted against the Independent Living Movement Ireland. As public representatives, we need to play an important role in ensuring that does not happen. Any feedback on that from witnesses would be appreciated.

Second, Ms Flynn referenced the development of proposals around fees. What are the proposals and who are they from? It does not just apply to people with disabilities but we know people with disabilities are more affected by poverty. We have to ensure cost is not a barrier. What are the specific proposals?

How will it work in terms of access? Will there be regional offices or what will be the approach?

Finally, witnesses spoke about how, in other countries, this applies to 16 and 17-year-olds as well. I am interested to hear what witnesses think about the pros and cons of that or had other feedback.

Ms Áine Flynn

I quite agree. I reiterate the importance of carers not seeing themselves pitted against the Independent Living Movement Ireland and its support for this Act. We need to be very conscious of and continue to address that.

On fees, I do not have the specific numbers but we can share those as appropriate. We looked at best practice in other jurisdictions. We came up with numbers. Fees are largely to be set by regulations to be supplied by our parent Department. Looking at the service we will have to provide, we have recently come up with proposals to say, "What do you think of these numbers?" We will see what the feedback is on those. The directive to us has been that there is no perceived requirement that we are to be a self-funding service. Other comparable services in other jurisdictions are. In certain cases, we will provide an extensive, involved and lifelong service for people who may be high net worth individuals and it may be entirely appropriate that a certain cohort have to pay for some of our services.

Access and regional offices is an important consideration. We have all in the last 12 to 14 months had to think creatively around that and use virtual platforms. Is there a greater opportunity to reach out to ensure this is perceived as a State-wide solution? We are looking at the possibility, which is very much in its infancy, of having regional hubs or other offices. Where people cannot access us digitally, we are looking creatively at perhaps using the services and good offices of the Citizens Information Board, library services or whatever, so information is available through those channels.

I will not comment greatly on the 16 or 17-year-olds. They are identified otherwise as a separate cohort in legislation. In answer to an earlier question, however, it has not been part of the conversation here yet specifically on capacity legislation but it has certainly been the subject of comment and is something to watch with interest. We would have to be responsive to any changes that will come down the tracks as far as these younger people are concerned.

Chairman

I thank Ms Flynn and call Senator O’Loughlin.

Senator Fiona O'Loughlin

I thank the Chairman, Ms Flynn and her team. This is quite a complex area and I thank our witnesses very much for giving us the overview which is greatly appreciated. I have number of small questions. I am assuming - and this follows on from what Deputy Cairns said - that when we are talking about adults, we are talking about over 18-year-olds.

On the question of bona fides, in Ms Flynn’s opening statement a reference was made to a person who may have a bona fide interest in the welfare of the relevant person. How do we define such a bona fide interest? I am aware that our witness has said that the applicant can often be a family member, carer or the HSE, but Ms Flynn made reference to perhaps where different members of a family may have different views and there can be conflicting interests there as well. If there is a relevant person and a number of family members who have different views, how is that issue addressed?

In a practical situation, a parent may, perhaps, leave something in a will to a family member with an intellectual disability and there may need to be support around that. Is that something that comes within this situation if there is conflict between other members of the family in respect of such a will?

Apart from those points, I refer also to the challenges in the use of substitute decision-making versus supported decision-making and how that aligns with the United Nations Convention on the Rights of Persons with Disabilities, CRPD, which is essentially what our committee is about. What other changes does Ms Flynn think are required to ensure compliance because part of our raison d’être is to ensure compliance with the CRPD.

I share the sense that others have expressed in how long it has taken to implement this convention and the fact that the Act was passed in 2015. I am aware that Ms Flynn said that this is a priority for legislation this year and that she expects to have it in place in 2022, together with the full operation of the Decision Support Service, DSS. I also hear what Ms Flynn is saying and that she is functioning at the moment and that people are contacting her. That is good and what is absolutely needed. From the point of view of our committee, how can we, as legislators, help to support that?

I also ask about the delay of the commencement and the fact that we have had hundreds if not thousands of those individuals going into the wards of court system since this Act was passed. The reason I ask is that I have recently been dealing with a number of these and there are concerns which need to be allayed. Where does this fit in with the guardian ad litem, GAL, system or does that system have any impact at all on this?

I understand what Ms Flynn is saying on the lack of awareness that is out there. We need to have a very significant education programme throughout the country, as I am sure will professionals who would be dealing with all of this. A great deal has been mentioned about family carers and, as Ms Flynn will be aware, we made a very strong submission on that and it is of very great importance. I thank the Chairman.

Chairman

I thank Senator O'Loughlin and I call Ms Flynn to reply, please.

Ms Áine Flynn

Dealing with Senator O'Loughlin's first point, adults means those over 18 years for the purposes of this Act and every adult has the presumption of capacity.

As to people who have bona fide interests in the welfare of a relevant person, that could potentially apply to anybody but will be subject, in certain cases, to the leave of the court. There are a number of people who do not need the leave of the court in order to so act and these are the top tier group. I could be an applicant under Part 5 of the Act and certain categories of persons do not need leave of the court. In other cases, there will be an interim stage where the court will have to engage with the person bringing the application and, perhaps, assess their bona fides. Yes, families may come into conflict in that. I mentioned earlier that we will have a certain role in addressing that and the court may have to assess the competing positions of different family members as to whether they should step in to a formalised role or not.

The Senator asked about a family member receiving money by way of an inheritance. That is exactly the sort of thing that might be amenable to support, bearing in mind always - and this is a point I would seek to emphasise - that somebody with an intellectual disability may well be about to manage that inheritance without stepping into a formal structure under the Act but the stepping off point is not to think how we go formal with this but rather to try to shore up somebody's independent decision-making to see if that is something that he or she can manage himself or herself. On the face of it, managing an inheritance, or any kind of property decision around that, is something that could come under the formal support of the Act.

Substituted versus supported decision-making is a day-long conference in itself. Article 12 of the CRPD is subject to varying perspectives and, as I mentioned, the State at the time of ratification entered a declaration that if substitute decision-making is something that is prohibited by CRPD - the convention does not explicitly prohibit it but the interpretation of the convention by the committee for the convention does - the State is then still going to have substitute decision-making very much as a last resort, as I set out in my statement. There are all kinds of competing perspectives and a great deal in the literature about that.

It is important that the fact we provide for substitute decision-making does not mean that that is the default option of choice. We need to be careful that decision-making is facilitated and supported on those lower tiers far as possible, bearing in mind that substitute decision-making is still a matter that is subject to the guiding principles, including the individual's will and preference.

In terms of ensuring that this can really happen next year, I have mentioned our dependencies and they are fairly straightforward and are the ones that might always arise. We need support for our resourcing as to the continuing budget allocation. We will be addressing that in the Estimates process and we will be looking at what we think we need to open our doors and to operate a service for the second half of next year, together with sanctions for posts, and so on. The importance of getting that amending legislation through and the whole regulatory framework is going to be essential to our operations.

We must feel for the wards of court who have been brought into wardship because of the delay. Here is a structure that was promised and while waiting for it people have continued to be taken in through the front door of wardship. I have mentioned the route out of the back door and these individuals will be amenable to that review process and can seek to have their applications heard on day one, when the new service commences and I hope that many may take up that offer.

On the GALs, I know that the wardship court has been somewhat creative about ensuring representation and hearing the voice and I know that my colleague, Ms Macklin has looked somewhat at those guardians ad litem and parallels with the panels that we will operate. We have looked at those mainly around identifying, resourcing and recruiting those panels but our hope is that with that access to the court, to representation and to legal aid, that the voice of both the relevant person coming into the system and the current ward who is being reviewed potentially out of the system will be heard very strongly in court.

Chairman

I thank Ms Flynn and members. I believe that everybody online has been afforded the opportunity to speak.

I thank Ms Flynn for her comprehensive overview and the in-depth knowledge that she has of the subject matter, which is clearly a very complex one. From a practical point of view, as of now someone may become incapacitated in mind and body through a brain haemorrhage, or any other such event such as a car accident, or whatever it may be.

Right now, the issue is that somebody applies to make them a ward of court. Where somebody does not have immediate family, who has either siblings of equal status, or nephews or nieces, where do they go when this legislation is enacted? What is open to them, to their family or indeed to the community to ensure the person is given the proper care and dignity?

Ms Áine Flynn

The Chair broke up a little bit as he was asking the critical part of the question. Was it about what happens in the here and now pre-commencement of the Act?

Chairman

Yes, what happens in the here and now, and what happens in 2022?

Ms Áine Flynn

Those are the sorts of applications that are brought before the wardship court every day. They are often very tragic cases where someone has received an award compensation following, for example, an acquired brain injury. There can be this unfounded perception that that is somehow something that can be managed by the next of kin. If one has not been able to plan ahead by way of an enduring power of attorney, EPA, then that is not true. Anyone of us in exactly that situation could be the subject of an application for wardship.

The Chair asked what might happen if that person is unsupported by family members and there is nobody appropriate to step into that role. The court is the decision maker under wardship, with certain day-to-day decisionmaking devolving to what are called committees. There are committees for the person and committees for the estate. Often the day-to-day function is carried out by family members. Where nobody is available or suitable, it is a role that is taken on by the General Solicitor for Minors and Wards of Court. If we think again about that number of 2,300 or so current adult wards, the general solicitor acts in about 600 of those cases. In about 25% of cases, family members are either not available or not suitable for one reason or another. That is the process, as it is in the present day.

Often those applications are brought by the Health Service Executive, HSE. Sometimes - where money is not an issue at all, but there are day-to-day decisions to be made where somebody is very much unsupported in the world - the fundamental object of the application for wardship is around safeguarding consideration. This is often the context of applications for wardship that are brought.

Having said that, I am no longer in the wardship court. I hesitate to provide an authoritative statement on exactly what is happening in the wardship court at the moment. By way of the replacement process, in the scenario that the Chair described, it would be open to a family member or anybody with a bona fide interest, if necessary, to bring an application to court. It would normally be the Circuit Court, the idea being that is more regional, accessible and less costly. The Circuit Court could say that somebody sadly lacks the capacity to make a decision around the management of this award of compensation. It will, therefore, appoint a decision-making representative to fulfill that role. If there is no family member to fulfill that role, the court can call on us to nominate a decision-making representative. We can nominate two from a panel, which we will set up and maintain. The court can then appoint a decision-making representative, who will be a professional person. We hope to make that panel as diverse as we can. They will be able to step in and carry out that decision-making role. My colleague, Ms Macklin, has been looking at setting up those panels currently. Work for their recruitment is active and ongoing.

Chairman

I thank members for their participation and the witnesses for their expertise. The witnesses should continue the good, complex and detailed work that they are doing. It is wide-ranging and needs a huge, dedicated team to bring it to fruition.

Our meeting now stands adjourned until the private meeting at 11.30 a.m. on Thursday, 27 May 2021.

The joint committee adjourned at 1.55 p.m. until 12.30 p.m. on Thursday, 27 May 2021.