There is a desperate need to additional legislation for the rights of people in situations where their liberty is at issue, an advocacy group for the rights of the elderly has warned.
Sage Advocacy director Mervyn Taylor, the organisation that advocates for the rights of the elderly, was speaking after a Court of Appeal ruling that a general hospital acted unlawfully by preventing a frail 93-year-old woman with dementia from leaving due to its concern that discharge was not in her best interests.
Mr Justice Gerard Hogan said on Monday the case raised legal and constitutional issues of “far-reaching importance” regarding care and welfare of the infirm elderly.
Mr Taylor said the case summed up the “ issue here of care and custody”.
“We accept that suspects and prisoners have rights, but we find it difficult in certain situations to allow that older people also can have rights,” he said.
Mr Taylor told RTÉ's Morning Ireland said the group were aware of cases where elderly people were "effectively deprived" of their liberty because of the lack of home care supports.
He said the Assisted Decision Making Capacity Act, which was passed in December 2015, would not be introduced until 2019.
“It allows for the establishment of a decision support service and a director has already been appointed, Áine Flynn, and that office is currently being established,” he said.
“We’re aware of situations where people are effectively being detained for long periods of time in hospitals and in other places because of concerns about safe discharge, but the gardaí cannot hold people beyond a certain time and this points not just to the need for legislation, but to a more integrated system of supports for care in the home.”
“Really the nub of this issue is ‘nothing about you without you’ - people cannot make decisions about you without you, your rights and your views, your will and preference being taken into consideration.”
Mr Taylor said under the new legislation, which he described as “ground breaking”, a key culture change was required.
“The key culture change is moving from acting in people’s best interests, which are very often aligned with your own best interests, to do something that might in in your best interest as a professional, but moving towards will and preference.
“What is it that the person would have wanted? Did they state their view in relation to where they wanted to be cared for?
“These are important distinctions. I have no doubt that some people act in people’s best interests and they mean well, but some people also find it convenient.
"We're awaiting legislation to deal with Deprivation of Liberty and the Department of Health. we hope to see legislation in the autumn, hopefully this will address cases such as described in Mary Carolan's report, but the Protection of Liberty regarding Places of Care, which is what I'd really like to see it called, is crucially important, this legislation we can't get it soon enough.
“There is a desperate need for this additional legislation to provide for the rights of people in situations where their liberty is at issue and that they should have a right to an independent advocate ie somebody who is independent of family, care provider or systems interests.
“That would stop this phenomenon that we see so frequently of shoehorning people into care in congregated settings such as nursing homes and they’re being told that they’re going in for a short period of respite care and then they’re effectively left there, and detained there.
“The fact that lady in question signed a self discharge form is an indication of her will and preference.”