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

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www.inclusionireland.ie