Letter to the Department of Children, Disability and Equality
19 March 2026
Re: Draft Heads and General Scheme of the Assisted Decision-Making (Capacity) (Amendment) Bill 2026
I write in follow up to the Commission’s attendance at a recent consultation event regarding ‘Wardship and the Assisted Decision-Making (Capacity) Act 2015’ and in particular our bilateral engagement with you on the draft Heads and General Scheme of the Assisted Decision-Making (Capacity) (Amendment) Bill 2026. The draft legislation is of particular interest to us as the ‘A’ status National Human Rights Institution (‘NHRI’) and the National Equality Body (‘NEB’) for Ireland with the statutory mandate as the Independent Monitoring Mechanism for the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’).
The Commission recognises that the proposed legislative amendments to the ADMCA reflects an acknowledgment of the State’s obligations under the UNCRPD to end wardship. We recognise that the proposed legislation responds to an imminent and serious difficulty, in that the expiry of the statutory deadline without the discharge of Wards may create profound legal uncertainty for both Wards and their families. In that context, the action to address that issue and the Department’s direct engagement with IHREC on these Heads is welcome.
Notwithstanding this, it remains a concern that these amendments accept that wardship will continue for a further 18 months, and that is contrary to Ireland’s human rights obligations under the UNCRPD. We have specific concerns in relation to gaps in procedural safeguards provided for in the proposed legislation, in particular:
- Notification of discharge and extension orders: The proposed legislation does not require the Ward to be notified of the application or to participate in the proceedings related to the application. They only need to be notified of the Order having been made.[1] Cognisant of Article 13 CRPD, we are concerned that a Ward may not be adequately aware of and involved in the proceedings, including, for example, knowledge of the contents of any Order of the Court.[2] We recommend amendments to the proposed legislation to ensure that: there is sufficient notice provided to a Ward of the application for extension including the reasons relied on for the extension, and provision of an express requirement that the Ward and Committee are notified of the making of the Order and provided with a copy of the Order within a set time period.
- Timeframe for individualised assessment: While the legislation confers on the Court a power to extend time in individual cases, up to 18 months or the 25th of October 2027, whichever is earlier, we are concerned that this may not be workable in practice, given the current numbers of individuals still in wardship and the extremely compressed time frame available to conduct individualised assessments.[3] The timescale may also prove challenging for the solicitors assigned to Wards for the discharge process.[4] This raises a concern that each application for an extension may not involve an individualised assessment of maintaining a person in wardship, and may, of necessity, operate in a largely summary manner, driven by systemic pressures rather than by an evaluation of individual circumstances. We recommend that when instituting these changes, clear plans are confirmed regarding adequate resourcing and accessibility measures in the extension process.
We note that while the draft legislation provides a threshold for the extension of a wardship order, this does not address concern regarding the reason or causes of the delay. It does not distinguish unavoidable circumstances and delays arising from systemic backlog, administrative inefficiency, resource constraints or failures on the part of relevant parties to take timely action.[5] We recommend that alongside the publication of legislation to amend the ADMCA to deal with the current risk of a legal lacuna, the State provide contextual information which indicates what measures were taken to meet the deadline for the abolishment of wardship and the timing of those measures; what specific actions are being taken or will be taken to avoid a repeat of these circumstances; and what remedial action is being taken or will be taken to ensure that disabled people will have adequate time, process and supports to effectively engage with the legislative process in future.
We welcome the Department’s efforts to engage with and inform concerned individuals, however limited scope for meaningful engagement and the short notice given for the event is regrettable. This is particularly the case given that draft legislative proposal regarding the ending of wardship has been introduced at a very late stage with insufficient consultation with affected individuals and groups and with very little scope for pre-legislative scrutiny. The insufficient time and apparently insufficient process and supports to enable full engagement with this legislative proposals is in stark contrast to the government’s commitments in the National Human Rights Strategy for Disabled People.[6]
You will be very familiar with the UNCRPD principle on participation as a particularly relevant consideration when the State proposes legislative change, particularly noting the group impacted. This development and the imminent deadline were foreseeable and the slow pace of exits from wardship widely acknowledged.
IHREC has previously found that public bodies within the Irish justice system inadequately accommodate the needs of disabled people in their practices. In this context, and noting the requirement for adequate participation, we recommend that separate to the primary or secondary legislation, the Wards of Court Office should write to every Ward and Committee in plain English informing them of the amending legislation and how this change will affect them.
- We draw your attention to the UNCRPD Committee’s recent request to the State to provide it with information regarding the State’s measures “to withdraw existing reservations and declarations to Articles 12 and 14” and measures “to implement the rights of the Convention that are subject to immediate realisation, including in relation to individual autonomy, such as the freedom to make one’s own choices”[7] We reiterate our recommendation that the State provide a clear, time-bound and specific plan to remove its reservations and declarations to the UNCRPD. In this regard, we look forward to engaging further on the planned review of the ADMCA.
We remain available to discuss our observations with you and thank you for your ongoing engagement with IHREC in its capacity as IMM.
Your sincerely,
Rebecca Keatinge
Head of Monitoring and Compliance
Footnotes
1 Order 67, Rules 94 and 95 RSC provides that Wards are personally served with originating petitions. Practice Direction HC133 provides that service of applications for discharge must be served personally in compliance with Order 67. There does not appear to be any generally applicable rule that applications under Part 6, other than discharge reviews, would have to be served on the Ward or Committee.
2 Subsections (2A)(a)(iii), (2A)(b)(iii), (3A)(a)(iii) and (3A)(b)(iii) provide that “Where the relevant person has not participated in the making of such order, they shall be notified of the making of any order under this subsection as soon as practicable after the making of any such order.” However, in contrast to other hearings under the 2015 Act, there will be no requirement for the Ward to participate in the hearing. Specifically, section 139 provides that certain applications shall be heard in the presence of the relevant person, unless certain exceptions apply. Section 139(1A) provides that that requirement applies to a review under Part 6 by the wardship court of the capacity of a Ward. It is not clearly established that this application for an extension will not qualify as a “review” and therefore there is no clear obligation to have the ward participate. Accordingly, there may be circumstances where a Ward is only told about the extension after it has been granted, and the Committee may not be told at all.
3 On the current timetable, the legislation is anticipated to be enacted in or around February 2026 with extension applications to be made in respect of more than 1,000 Wards.
4 In theory, they will be required, within that same narrow window, to identify the procedural stage of each case (i.e. has a medical visitor visited the Ward, have they prepared the report, are the assets accounted for) and assess the length and justification for any extension sought in the circumstances of the Ward.
5 To grant an extension, the wardship court must be “satisfied” that “good reason has been shown as to why the time period…will not be met” and “it is in the interests of justice to do so”.
6 The Strategy commits to embedding a cross-cutting commitment to strengthen its capacity for stakeholder engagement including by establishing and embedding “a robust framework across Government for supporting meaningful and participatory stakeholder engagement with disabled people.” Government of Ireland, National Human Rights Strategy for Disabled People 2025-2030 , p. 50.
7 In particular, we draw your attention to the Committee’s request for information regarding the measures taken by the State to “ensure that the transfer of Wards of Court to the Decision Support Service does not result in continued substitute decision-making, that persons with disabilities (Wards) and their families are consulted on the transfer, that safeguards are in place to protect the property and finances of discharged Wards, and that there is an investigation and complaint mechanism to address investments previously made with funds and managed by the Wards of Court system.”