In my last opinion piece, I applauded the Minister of Youth, Social Development and Seniors for her stated intent to table legislation that would afford people with disabilities better access to services, facilities and employment. I then pointed out that, while we have existing legislation and enforcement mechanisms that provide significant protection to Bermuda’s disabled residents, passing further parallel legislation would incur significant expense for questionable gain. I also observed that, despite the protections afforded by our Human Rights Act, there remains room for improvement. I then offered some practical solutions to expand existing protections for the disabled, and concluded by encouraging individuals who feel their human rights have been violated to contact the Human Rights Commission, which can assist in enforcing their rights.

My advice that people should seek to enforce their rights, however, will not work where a person lacks the mental capacity to do so, which is a fundamental issue for those who are mentally disabled and/or are beneath the age of 18. In Bermuda, if a person wishes to pursue an action before a court or a tribunal, that individual must be of sound mind and be over the age of 18. If a litigant cannot satisfy those requirements, that person will lack the “legal standing” to file a complaint or lawsuit or have their issue determined by the tribunal or court. To remedy this, our rules of court allow mentally competent adults to sue on behalf of a person who is experiencing a serious mental illness or brain damage, or on behalf of a child, as a “litigation guardian”.

But what happens in Bermuda when no one is willing to represent the interests of a mentally incompetent adult or child whose legal rights have been breached? The answer, sadly, is that such individuals are effectively barred from seeking relief and are denied justice.

In other English-speaking jurisdictions, this tends not be an issue, as most governments appoint an independent officer who acts as a “public trustee” or equivalent office. The role of such an official typically involves taking over the affairs of children and mentally incompetent people when no one else is prepared to represent their interests. A public trustee is also expected to ensure that such vulnerable people are cared for through their own resources or with available state assistance. The public trustee will also normally have the authority to sue and defend the estate of a vulnerable person in court proceedings.

From Bermuda’s perspective, the concept of a public trustee is not a new idea. Fifty-five years ago, Chief Justice Sir George Ratteray passed the Mental Health (Patients’ Property) Rules. In those rules, an “Official Solicitor”, whose functions are essentially those of a public trustee, is tasked with acting as a manager for a mental patient’s financial affairs when no one else is willing to do so. The rules also call for the Official Solicitor take charge of litigation involving a mental patient as required.

While the intention behind the Mental Health (Patients’ Property) Rules was commendable, they have never functioned as intended because Bermuda does not have an Official Solicitor.

Although there was mention of an “Office of the Public Guardian” by the One Bermuda Alliance government in its Throne Speech in 2015, and again by the Progressive Labour Party government in its 2020 Throne Speech, it seems that no further action has been reported in establishing this office.

By reading the newspaper, any resident of this island can see that there are children in Bermuda who need representation in court. From the media, we also know that there are elderly people in Bermuda who have been exploited and abused by others, and have no real means of protecting themselves. Anyone walking the streets of Hamilton can also see that there are homeless people, some of whom are mentally ill, who clearly have no access to the courts when needed. Despite this, 55 years after identifying the problem, our society still lacks a public official who has the legal standing to act for such vulnerable people when their next of kin either cannot or will not make the required application.

With an election date set for February 18, now is as good a time as any to highlight Bermuda’s lack of a public trustee. As a legal practitioner, it is my firm opinion that our failure to act on this issue is one of our society’s greatest sins of omission. Although good governance requires the wise expenditure of finite resources, we should remember the words of Pearl Buck: “The test of a civilisation is the way that it cares for its helpless members”.

For these reasons, I urge all political parties to offer concrete plans, instead of vague promises, as to how and when this fundamental office will be created.

• Allan Doughty serves as senior counsel with the dispute resolution team at Kennedys