REFORM VITAL TO PROTECT VULNERABLE IN SOCIETY
Disability and Charity Law Seminar in Dublin

More than 140 people representing a wide range of NGOs attended a half-day seminar hosted by Beauchamps Solicitors in Dublin's Conrad Hotel on Saturday 6 March. Entitled 'Disability and Charity Law', the talks were designed to give people a clear understanding of new and upcoming changes to legislation and how their obligations have changed.

Chaired by Mr Fergus Finlay, chief executive of Barnardos, the seminar featured Mr John Costello, Beauchamps Solicitors; Ms Orla Barry Murphy, Secretary to the Commissioners of Charitable Donations and Bequests for Ireland; Paul Ledwidge, CEO of St. Michael's House and Chairman of the Disability Federation of Ireland and Mr Mark Pery-Knox-Gore, Partner, Beauchamps Solicitors.

Mr John Costello of Beauchamps Solicitors, who organised this event said, "A number of law reforms are urgently needed to provide legal protection for the vulnerable and disabled in society, both young and old. We have no modern legislation on mental incapacity (our legislation is the Lunacy Act 1871) or any legislation on advance care directives, unlike the USA or the UK."

Discussing the Government's National Disabilities Strategy, he reiterated the critical need for funding its proposals saying, "An independent advocacy service to assist those with disabilities was proposed a few years ago. Its provision for external inspections and independent advocates will enable their voices to be heard in relation to assessments and complaints. It will also ensure that high standards are maintained, bad practices rooted out and that the vulnerable are protected."

"We are all acutely aware of Ireland's aging population. At present there are around 480,000 people aged over 65, of whom five per cent are living with some form of senile dementia. 22 percent of all people aged over 75 years of age have a disability, according to the 2006 census. These statistics clearly show how important it is to offer protection to the elderly, who are open to a range of abuses. A worrying trend is that 25 percent of all claims of abuse relate to financial abuse, and it is widely believed that this is even more prevalent than the figures suggest. More legal protection is needed for vulnerable people to protect them from financial abuse", he said."

Addressing the issue of 'consent to medical treatment', he referred to the 2009 Medical Council guide to ethics and conduct, which states, "every adult with capacity is entitled to refuse medical treatment". However, this raises an important question: in what circumstances is the patient competent to give that consent and to what extent should the views or wishes of relatives and carers be taken into account? A 1995 judgement by Mrs. Justice Denham stated that, "If medical treatment is given without consent it may be a trespass against the person in civil law, a battery in criminal law and a breach of the individual's constitutional rights.

"The dilemma for medical professionals in practice is that there are no parameters setting out a doctor's obligation to comply with the previously expressed wishes of a patient," he said.

In September 2009, the Law Reform Commission recommended and drafted legislation that would provide a framework to enable Advanced Care Directives (also known as 'living wills').

"Currently, there is no legislation to guide people and the legal position is quite unclear. An advance directive sets out what health care decisions should be made if a person becomes mentally unable to take part in those decisions e.g. to refuse types of treatment. This is a complex area due to the variety of medical interventions now possible and legal and medical advice may provide clarity to those considering this option," he said.

The Mental Capacity Bill 2008 is due to be published before Easter this year. It reforms and modernises the existing 'Wards of Court' system and replaces the Lunacy Act of 1871.

"It provides protection for a range of incapacitated or vulnerable adults so that they cannot be taken advantage of. It also clarifies the law for carers, providing legal protection for everyday decisions and certain acts. A key feature of the Bill is the creation of new legal 'personal guardians' who will make necessary decisions for people who are vulnerable or incapacitated. There will also be an independent 'Office of Public Guardian' to register and supervise personal guardians and review decisions made on behalf of vulnerable or incapacitated people".

Mr Costello also talked about the 2008 UN Convention of the Rights of Persons with Disabilities, which reaffirms the human rights of the disabled. It covers areas such as employment, accessibility, education, freedom from exploitation, independent living and the right to be recognised as a person before the law.

"It provides a critical step in the journey from a "welfare" based approach to a "rights" based approach towards disability as it provides fresh impetus to initiatives to improve disabled people's freedom and opportunities. While Ireland was among the first 40 countries to sign the Convention it has not yet ratified it. Ratification would mean that the State would be answerable to international bodies regarding its disability laws and policies," he said.

He also spoke about wills and trusts for those with physical and/or intellectual disabilities; regulations and standards for residential care, home care and care for the elderly.

In wrapping up, he said, "I believe the quality of a society is measured by how it treats the disabled, the vulnerable and the incapacitated in the community. Events like the 2003 World Special Olympics demonstrated the spirit of understanding, acceptance and generosity of the Irish. We hope that this will continue even as we face our present enormous challenges and difficulties."

Mr Mark Pery-Knox-Gore, Partner, Beauchamps Solicitors examined the topic of 'Governance, Management and Accountability of Charities', looking at the Charities Act which imposes strict governance regulations on charities and will examine the implications for their boards, company directors', trustees and members.

Discussing the new Charities Regulatory Authority (CRA) which is expected to be set up in 2011 he said its function would be to increase public trust and confidence in the management of charities and to ensure high standards in their governance and accountability."Expect to see a comply-or-explain principle influencing how the annual reports of charities are presented. Organisations which have good corporate governance structures in place and a strong culture of compliance with their own internal rules have little to fear from the regulators", he said.

The seminar was chaired by Mr Fergus Finlay from Barnardos and featured Ms Orla Barry Murphy, Secretary to the Commissioners of Charitable Donations and Bequests for Ireland, who addressed the definition and registration of charities, the role of the new regulator, reporting requirement and fundraising rules. In addition, Mr Paul Ledwidge, CEO of St. Michael's House and Chairman of the Disability Federation of Ireland spoke about the challenges facing disabilityorganisations in 2010 – repeated funding cuts, the impact of moratorium 2009-2014 and delivering quality of service in a downturn.

Ends

For further information, please contact:

Carina O'Neill, Bracken Public Relations on 087 2228124