Wards of court lose rights and liberties

ON Tuesday, Mr Declan Heavey convinced a High Court jury that he is not "of unsound mind" and unable to manage his person and his affairs. The vote was nine to three. He had successfully fought off an effort to have him made a ward of court.

However, before his case even came to court Mr Heavey accomplished the unusual feat of having it heard before a jury. Uniquely, he also succeeded in convincing the President of the High Court, Mr Justice Costello, that there was no good reason for it to be heard in camera, and that it could be open to the public and the media. For the first time, the workings of the law on wardship of court were open to public scrutiny.

There are some 2,000 wards of court, the majority of them victims of traffic accidents or of mentally-disabling diseases. It is a protective procedure, designed to protect them and their property in their own interests, according to Ms Siobhan Ni Chulachain, who has completed a Masters thesis on wardship.

An "interested person", who could be a relative, a solicitor or a social worker, applies to the Ward of Court office for a person to be made a ward. The High Court President institutes an inquiry and makes a decision on the basis of two examinations by psychiatrists. If the person is taken into wardship, the State, through the courts, takes over the administration of their affairs and appoints a committee to do it day-to-day. The cases are normally heard in camera on the basis that it would be unfair to the person concerned to have his or her sanity discussed in public.

Most such cases are not contentious. But being made a ward has serious implications for a person's rights and liberties. While this might be only of academic interest to a person who is seriously ill, it is much more problematic for someone who, until the wardship issue arose, was functioning freely in society.

"The State is a father-figure under the law," said Ms Carmel Stewart, a barrister specialising in these cases.

"You are judged incapable of managing your person or property, and you could be ordered to be detained in a psychiatric hospital, for example, or you call be ordered where to live.

"You can't leave the country without the permission of the courts. You're not a free person, basically."

Such people cannot, of course, initiate or conduct legal actions on their own behalf.

THESE personal rights and liberties are severely curtailed for no reason other than that the person is held by a court - on the basis of the opinions of two psychiatrists - not to be able to manage their affairs.

However, psychiatry is an inexact science, and there have been many examples of psychiatrists giving conflicting evidence in court cases.

In fact, it appears that in this case Mr Heavey had been managing his affairs for some years, including his marriage to a Spanish woman who was with him in court, and the question of his being made a ward arose only as a result of his being involved in other litigation.

This concerned his father's will, which is still the subject of litigation. Challenges to wills are heard in camera, so they cannot be reported in detail. There was considerable evidence about the provisions made for Declan Heavey and his siblings. Mr Heavey is challenging the provision made for him. The action involves his brother, who is a trustee of the will.

Negotiations took place between his solicitors and those of his brother, in the latter's capacity as trustee, in an attempt to prevent the issue going to court.

Mr Heavey's former solicitor, Mr John Cunningham, told the court of the difficulties he had representing Mr Heavey, who, he said, was giving conflicting instructions. He was, he said, "inclined to hear what he wanted to hear. If you tried to get him on to a more realistic attitude he would get quite strident."

Mr Cunningham said that if there did have to be a trust, Declan did not want his brother to be a trustee. Mr Justice Geoghegan, who heard the case, asked: "Was this brother a beneficiary of the trust?" Mr Cunningham said he was. "Would that not be unusual in your experience?" asked the judge. Mr Cunningham: "No."

He then gave evidence of a breakdown suffered by Mr Heavey following an unrelated altercation in which he had been involved while the litigation was in progress. As a result, Mr Heavey spent six weeks in the St John of God hospital at a time when Mr Cunningham was attempting to settle the case. Mr Cunningham said that he came under some pressure to contact the Wards of Court office.

He wrote to his client's psychiatrist, asking him if he should be made a ward of court. The latter's opinion was inconclusive. Eventually, Mr Cunningham did contact the Ward of Court office, and the series of events was set in train which led to the court case just ended.

IN his final address to the jury, Mr Heavey stressed that the issue was not about money. It was about his right to live "totally free of ties".

Being made a ward of court severely limits a person's liberty. It is clear that the question of Mr Heavey being made a ward of court would never have arisen if he had not challenged his father's will.

The fact that this all arose out of a disputed will raises the question that this law with its serious consequences of the individual concerned, is open to being used in family disputes in such circumstances.