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Calls for use of 149-year-old 'lunatic' legislation in cases involving Wards of Court to end

14 NGOs have asked the government to commence the 2015 Assisted Decision-Making (Capacity) Act.

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A GROUP of NGOs has called on the Government to end to the use of Victorian-era ‘lunatic’ legislation in cases involving Wards of Court.

The fourteen organisations have written an open letter to the Minister for Justice calling for funding to commence the Assisted Decision-Making (Capacity) Act 2015, which would end the use of the Lunacy Regulation Act 1871.

Both pieces of legislation broadly relate to decision-making and a person’s ability to make legal decisions about themselves.

The 2015 legislation has not been officially commenced, meaning the 149-year-old Act is still being used. More than 1,250 people have been taken into Wardship since the Act was passed in 2015.

In 2018, the Decision Support Service (DSS) stated that it required €9m to become operational, but has only been allocated €3m.

The NGOs have called on the Minister to allocate the additional €6m in funding in Budget 2021 to allow the service to function.

Dr Eilionóir Flynn of the Centre for Disability Law and Policy at NUI Galway says the 1871 Act “strips individuals of their legal personhood” and removes their ability to make legally binding decisions for themselves.

“The procedure for a person being made a Ward is, in itself, not in line with natural justice or human rights standards,” she said.

“In most cases a person does not get any opportunity to represent themselves in court or in front of a jury, nor do they get an opportunity to see the evidence presented to the judge to challenge it.”

The CEO of Age Action Ireland, Paddy Connolly added that the 2015 Act would emphasise an individual’s ‘will and preference’, which would be a shift from the approach of representing their ‘best interests’ in the 1871 Act.

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“There has been an increasing use of Wardship to detain a person for treatment where they do not satisfy the criteria of the Mental Health Act 2001,” he said.

“It is therefore of critical importance for the Government, through Budget 2021, to provide the funding for the Decision Support Service and to fully commence the 2015 Act.”

In 2018, a review by the National Safeguarding Committee found the Ward of Court system to be inadequate and archaic.

The group said the system relied too much on the integrity of family members and professionals, and found there was a lack of public understanding about what it entailed.

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