PowerPoint Presentation Deirdre Carroll UCC

Access to justice in civil and criminal proceedings: the barriers facing persons with an intellectual disability Deirdre Carroll CEO, Inclusion Ireland 3rd May 2012, UCC, Cork • Inclusion Ireland is national association for people with an intellectual disability; • The Vision of Inclusion Ireland is that of people with an intellectual disability living and participating in the community with equal rights as citizens, to live the life of their choice to their fullest potential; • Founded in 1961; • National organisation, with an office in Dublin; Capacity - Current Irish Law The only formal mechanism for managing affairs of persons who lack decisionmaking capacity is to be made a Ward of Court 1871 Lunacy Regulations (Ireland Act) Supreme Court in 1996 declared: “ When a person is made a ward of court the court is vested with jurisdiction over all matters relating to the person ……” Law Reform Commission - The Law and the Elderly 2003: “ A finding that a person lacks capacity results in the restriction or removal of fundamental human rights” Capacity - Current Irish Law - continued New Mental Capacity Scheme 2008 Still awaiting the Bill to come to the Dail More limited than what was proposed by The LRC (Court based) The presumption of capacity does apply to such things as marriage, divorce, adoption, sexual relations or acting as a member of a jury It appears that this legislation is opting out rather than dealing with these more complex and difficult areas Terms such as care, protection, best interest, guardianship paternalistic at variance with UN Convention on Rights of Persons with a Disability Relevant Publications: Law Reform Commission, Law and the Elderly, 2003 Inclusion Ireland, Who Decides and How? People with Intellectual Disabilities - Legal Capacity and Decision Making, 2004 Law Reform Commission, Vulnerable Adults and the Law: Capacity, 2005 Law Reform Commission, Report: Vulnerable Adults and the Law 2006 UN Convention on the Rights of Persons with Disabilities 2007 Case study 1 Henry is 59 years old He has an intellectual disability and lives in a residential care unit Henry was recently diagnosed with stomach cancer and is undergoing treatment which is going well He tells staff that he wants to make a will Henry has a large sum of money through the refund of illegal charges and has €15,000 in Credit Union savings Henry has his money managed by the service who is the agent for his disability allowance Henry’s parents are dead His closest relative is his only sister Claire who visits him once a week Henry tells a staff member that he wants to leave all his money to Claire when he dies Henry is supported by staff to visit a solicitor to make a will The solicitor tells the staff member that because Henry has an intellectual disability he won’t take instructions to make a will He says that Henry must visit a GP to get a letter saying that he has capacity and that even then he would have concerns Case Study 2 Sophie is 16 and has an intellectual disability Sophie has just started getting Disability Allowance and wants to open a bank account Sophie goes to her local bank with her mother Sophie has difficulties with writing so her mother fills in the form for her Marie, the customer assistant, is unsure about this so she checks with Greg, the bank manager Greg suggests that Sophie and her mother open a bank account in their joint names He says that he doesn’t believe that Sophie can manage the account alone and it is bank policy for people with disabilities to have a ‘responsible person’ named on the account Sophie and her mother open the account jointly and for some years the arrangement runs smoothly One day, Marie comes to Greg with concerns about the account as a large sum of money has been withdrawn Marie reports that Sophie attended the bank with her sister and withdrew the money Greg makes enquiries and discovers that Sophie’s mother has passed away leaving her as the only named person on the account He then decides that Sophie can have no more access to her account and looks for a doctor’s report on her capacity Case Study 3 Gary is a 55 year old man with an intellectual disability who also has cerebral palsy and mental health difficulties He is now in a wheelchair He was both sexually and physically abused as child in a residential service, and was awarded a substantial sum from the Residential Redress Board He was made a Ward of Court as he was deemed to lack the capacity to manage such a sum His sisters were made his ‘Committee’ Gary lives in a residential facility but visits the family farm every second week and at Christmas, and clearly loves to visit his old home His sisters want to have an accessible bathroom built for him when he visits They applied to the Wards of Court Office for the money to be released for this purpose, but it has been refused as it is not Gary’s main residence   Case Study 4 Laura Kelly case: Laura a 23 year old woman with Down syndrome who was prohibited from giving evidence about her alleged sexual assault by a Judge who deemed she did not have capacity to testify in court Laura’s case did not proceed, and her alleged attacker was acquitted after the judge ruled she had failed a competency test Laura’s Mother is reported as saying “she was brought into this room in the Central Criminal Court and asked questions about numbers and colours and days of the week, which had no relevance in Laura’s mind She knew she had to go into a court room to tell a story so the bad man would be taken away It is ridiculous there is no one in Ireland to deal with someone similar to Laura, from the Gardai up to the top judge in Ireland and the barristers and solicitors” - Irish Examiner, March 2010 Ward of Court system: Decisions on capacity made by Judge; Judiciary has no formal training; No information available on how capacity is assessed; A Ward of Court is denied the right to vote, to make a will, to travel abroad and to marry; In 2010, 115 people with an intellectual disability were Wards of Court out of approx 2000; Sexual Offences It is an offence to have or attempt to have sexual intercourse with a person who is “mentally impaired” unless they are married Section 5.1 1993 Criminal Law (Sexual Offences) Act Mentally impaired is defined as : “Suffering from a disorder of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding against serious exploitation.” 11 Effect of the Law Can criminalise sexual relationships between people with intellectual disabilities unless they are married; Does not protect people from sexual acts that fall short of sexual Intercourse - general sexual offence legislation applies; 12 Parents with an intellectual disability Since 2005, Inclusion Ireland’s advocates involved in growing number of cases 2007 judicial review International evidence shows parents with an intellectual disability are: • Disproportionately represented in child care proceedings; • Evidence used that would not hold up against non-disabled parents; • Competence as parents judged against stricter criteria; • Disadvantaged in child protection and court process; Other issues People with an intellectual disability as perpetrators of crime & overrepresentation of people with a mild intellectual disability in our prisons; Lack of independent inspection and statutory standards in services for children and adults with disabilities; Woman claiming abuse by carer awarded €90,000 The Irish Times - April 18, 2012 A HIGH Court judge has approved a €90,000 settlement for a mentally impaired woman who claimed she was sexually assaulted by two men, one of whom was her carer It was claimed, at the time of the alleged abuse, the woman was a patient at two facilities for mentally impaired adults operated by the Brothers of Charity Through her mother, the 42- year-old woman, who cannot be identified for legal reasons, had sued the Brothers of Charity order and the two men who allegedly violently sexually assaulted her on different dates outside Dublin between August 1995 and November 1996 The woman, who has been assessed as having the intellectual age of an eight-year-old, sought damages, including punitive and exemplary damages, for the assaults, battery, trespass to the person, breach of duty and negligence of the defendants The claims were denied by all of the defendants In her proceedings, it was claimed the woman was violently sexually assaulted in August 1995 by her carer It was alleged she was permitted to go on weekend recreational breaks with the man and his family She also alleged that between June and November 1996, she was violently sexually assaulted by another man, the driver of the bus who took her to and from an educational facility He was an employee of the Brothers of Charity, it was claimed The woman claimed that as a result of the assaults, she suffered severe pain, upset and psychological trauma She became disturbed, difficult to manage, angry and tormented at what happened to her, it was also claimed Given her vulnerability to abuse in light of her condition, the defendants failed to ensure her safety and had exposed her to a risk which they knew, or ought to have known, of, it was claimed It was also claimed there was failure to vet carers, failure to carry out background checks on carers and employees, failure to ensure employees would not be a danger to patients and failure to adhere to provisions of child-abuse guidelines Ms Justice Mary Irvine yesterday approved a payment of €90,000, plus costs, for the woman in settlement of the action The former carer is to pay €20,000 to the woman plus a contribution of €2,500 towards her legal costs, while the Brothers of Charity will pay some €70,000, plus the balance of her legal costs It is expected an application to have the woman made a ward of court will be made later Patient brings challenge over detention at mental hospital The Irish Times - April 03, 2012 An intelelctually disabled man has brought a High Court challenge arising out of his continued detention at the Central Mental Hospital The man, who cannot be identified for legal reasons, has been at the hospital in Dundrum, Dublin, since January 2009 after he was found unfit to stand trial on three counts of alleged sexual assault Lawyers acting for the man claimed before the High Court that as he does not require medical treatment he should not be detained at the hospital, a high-security facility for mentally ill patients In proceedings against the HSE the lawyers argue the man has an intellectual disability and should be cared for at more suitable accommodation The HSE, it is also argued, has failed to advance any reason why he should continue to be detained at the hospital rather than somewhere appropriate The man, who is in his 30s but has the intellectual capacity of a six-year-old, is incapable of independent living and requires permanent care In his High Court action he is seeking an order quashing the January decision of the Mental Health Review Board, the independent body whose function is to review the detention of patients at the Central Mental Hospital, ordering that he remain detained at the facility He is also seeking a declaration that his detention is unlawful John Rogers SC, for the man, told the High Court his continued detention was in breach of the Convention on the Rights of Persons with Disabilities In an affidavit, the man’s solicitor, James Jones, said both the man and his family were unhappy about his detention and wanted him moved Mr Justice Michael Peart granted permission to bring the challenge on an ex-parte (one side only) basis INCLUSION IRELAND Unit C2 the Steelworks, Foley St., Dublin 1 01-8559891 info@inclusionireland.ie www.inclusionireland.ie ... court process; Other issues People with an intellectual disability as perpetrators of crime & overrepresentation of people with a mild intellectual disability in our prisons; Lack of independent inspection