THE LAW dealing with how vulnerable adults can interface with society is long overdue for reform. Confirmation that legislative proposals in this area are soon to be made is welcome. Those affected are normally not in a position to lobby for their rights.
They are the victims of accidents causing brain injury at birth, in childhood or in adulthood; those suffering from degenerative conditions that impair their mental capacity; those suffering from some forms of mental illness; and those who find it difficult to communicate their wishes. Often the victims of accidents have been awarded compensation which must be administered on their behalf. Those who become ill may have financial resources that require administration.
Up to now their affairs have been managed by making them wards of court and their affairs are then administered by this office in the High Court, presided over by its president. But making a person a ward of court deprives him or her of all autonomy and many rights. A ward of court cannot marry, travel abroad without the consent of the court, or consent to medical procedures. All financial decisions are taken out of their hands.
This can be an excessive interference in the autonomy of many people who may be able to make certain decisions, but not others. There is also a discriminatory element in this process as a person who has acquired wealth and who suffers from some mental impairment may find themselves made a ward of court, while a person without any wealth and with a similar level of impairment would not.
These and other problems were identified by the Law Reform Commission in a report published in December 2006. It stressed that a person with an impairment to their decision-making capacity does not lose his or her constitutional rights including the rights to privacy and to be treated with dignity. The UN Convention on the Rights of Persons with Disabilities was signed by Ireland last year and this too must be taken into account in the new legislation.
The Law Reform Commission directed legislators to new approaches to this issue. The system favoured by those countries who have introduced reform in this area focuses on capacity rather than incapacity in decision-making, where the nature of the decision is weighed along with the capacity of the person to make it, supported by a special office of public guardian for vulnerable adults. Such legislation here would mark a huge improvement in the present situation.