Access to justice in civil and criminal proceedings: the barriers facing persons with an intellectual disability

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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

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• 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

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Capacity - Current Irish Law
The only formal mechanism for managing affairs of
persons who lack decision-making 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
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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


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• 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

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• 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. Henrys 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 wont 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.

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• 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 doesnt 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 Sophies
  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 doctors report on her
  capacity.
•  

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• 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 Garys main residence.
•  

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• 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.
• Lauras case did not proceed, and her alleged
  attacker was acquitted after the judge ruled she
  had failed a competency test.
• Lauras 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 Lauras 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.

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• 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

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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.

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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

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Parents with an intellectual disability

• Since 2005, Inclusion Irelands 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

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Other issues

• People with an intellectual disability as
  perpetrators of crime over-representation 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

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Woman claiming abuse by carer awarded 90,000The
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.

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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 mans
  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.

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INCLUSION IRELAND

• Unit C2 the Steelworks,
• Foley St.,
• Dublin 1
• 01-8559891
• info_at_inclusionireland.ie
• www.inclusionireland.ie