High Court declares ward lacks capacity in all matters and appoints a decision-making representative.

THE HIGH COURT

Wards of Court

In the matter of an Intended Wardship

And in the matter of VV Respondent

[2025] IEHC 714

Record No. WOC11725

Between

HEALTH SERVICE EXECUTIVE

Applicant

and

VV (A PERSON OF UNSOUND MIND NOT SO FOUND)

Judgment of Mr. Justice Conor Dignam delivered on the 12th day of December 2025

INTRODUCTION

1. This judgment concerns the operation of the Assisted Decision-Making (Capacity) Act 2015 in Mr. V’s particular circumstances. Hogan J has described the Act as “the most fundamental change in the legal regime governing vulnerable persons in well-nigh 150 years” (The Child and Family Agency v KK [2024] IECA 242). It is perhaps understandable that questions arise as to its proper interpretation and application.

2. In order to understand the issue(s) arising in this case, particularly in circumstances where there were procedural and factual changes during the currency of the case, it is necessary to set out the background and the relevant statutory provisions.

FACTS

3. Mr. V has been under the care of a service provider for many years. He has a diagnosis of autism and intellectual disability, is non-verbal and requires significant support in all aspects of his daily life. He presents with a history of challenging behaviours. He resides in a high dependency unit. He has been receiving psychiatric care from a consultant psychiatrist, Dr. B, since April 2019. This includes prescribed psychotropic medication.

4. It seems there was a dispute between Dr. B and Mr. V’s General Practitioner about the appropriateness of this medication regime. It seems this led to inconsistencies and negative consequences for Mr. V’s care and wellbeing. It is alleged that the General Practitioner, due to his concerns about the psychotropic medication regime, refused to prescribe the medication from January 2022. I understand that this was not known to Dr. B. In 2022, Mr. V had two emergency hospital admissions. During these admissions, his medication was adjusted and his mental state stabilised. Dr. B continues to prescribe the medication, and it is dispensed by a pharmacy. It appears that Mr. V’s mental state has been stable since.

5. Due to the disagreement between the medical practitioners, and the opinion of Dr. B that Mr. V lacked capacity to make decisions regarding his care, the Health Service Executive applied to have Mr. V admitted to wardship. The application was initiated in early 2023. It was based on the issue around the psychotropic medication. In March 2023, a medical visitor, Dr. K, was requested to conduct a functional capacity assessment and a guardian ad litem was appointed. Following receipt of Dr. K’s report in July 2023, an inquiry was ordered in August 2023. The HSE also obtained a report of Dr. M of the 20th November 2023. Dr. K and Dr. B concluded that Mr. V lacks capacity and is “of unsound mind and incapable of managing his affairs”. Dr. M was of a similar view.

6. Because the application to admit Mr. V to wardship was in being at the date of commencement of the 2015 Act, the Lunacy Regulation (Ireland) Act 1871 remains applicable (see section 56(3) of the 2015 Act). The HSE, therefore, seeks for Mr. V to be admitted to wardship and immediately discharged under the provisions of the 2015 Act by way of a review under section 55(1) (see s.56(5)), with the appointment of a decision-making representative “to make decisions in relation to his personal welfare and healthcare, including medical and psychiatric treatment”.

7. When the applications for admission to wardship and immediate discharge first came before the Court, the relevant procedure was set out in Practice Direction HC120. The procedure at that stage in respect of applications for discharge was that when the relevant motion was issued a medical visitor was directed by the President, or another judge authorised to do so, to carry out a functional capacity assessment of the ward. This would then generally constitute the evidence as to the ward’s capacity and would inform what declaration(s) would be made by the Court pursuant to section 55(1) of the 2015 Act and the nature of any decision-making support that would be required upon discharge from wardship, if the ward was found to lack capacity and such support was necessary.

8. However, the President made Practice Direction HC133 (Wards of Court

– Discharge Applications: Part 6 of Assisted Decision-Making (Capacity) Act 2015 (as amended) on the 21st May 2025 (to come into force on the 3rd June 2025). This removed the requirement for a functional capacity assessment by a medical visitor and provided that such an assessment would also be accepted from a Registered Medical Practitioner. Therefore, it is no longer automatically necessary for the Court to ask for a medical visitor’s report. The Court may still do so, of course. Whether or not to do so will depend on the circumstances of the case and the state of the medical evidence.

9. The effect of this change for this case was as follows. Initially when the matter arose, the core question raised by the HSE was what the medical visitor should (or could) be asked to assess. The HSE’s position on this question was that because the application to admit Mr. V to wardship was grounded on very specific reasons and on his lack of capacity in very specific areas (the question of medication), the medical visitor should only be asked to assess capacity in relation to those matters and should not be asked to assess Mr. V’s capacity in any other area. I return to the basis for this position later. Following the commencement of the new Practice Direction, the HSE contended that this core question had receded in importance because the Court could act on the medical evidence that it already had, and did not need to obtain a medical visitor’s report. The HSE submitted that the question that arose as a result was what declaration(s) could be made pursuant to section 55(1) and what decision support could lawfully be ordered upon Mr. V’s discharge. The HSE’s position remained that any decision the Court made on the application for discharge should be informed, or constrained, by the fact that the application to admit Mr. V to wardship was solely due to the need for decisions to be made “in relation to his personal welfare and healthcare, including medical and psychiatric treatment.”

10. However, in addition to this procedural change, there was also a factual change and the position of the HSE set out in the previous paragraph did not fully reflect the facts or the evidence when the matter finally came before the Court. As noted above, the application to admit Mr. V to wardship was brought solely on the basis of his lack of capacity in respect of his healthcare, including medical and psychiatric treatment, and it was submitted by the HSE that it would be unnecessary and disproportionate for any declaration or decision support to go further than those matters. However, after the applications for admission to and discharge from wardship were first issued, there were discussions between the guardian ad litem and the solicitors for the HSE, and inquiries were made with Mr. V’s placement, as to whether there were any other issues in which a decision-making representative might be required. A supplemental affidavit was delivered on behalf of the HSE identifying three further matters. The first was decisions relating to access to and management of healthcare more generally (in circumstances where Mr. V had not had access to a GP for two years). The second area was in relation to finances, including social welfare and personal expenditure. This was in circumstances where Mr. V does not have access to his own finances and where his mother collects his

Disability Allowance and administers it. The third was in relation to arrangements for visits by his family. Thus, the case has to be considered by reference to these three matters in addition to the original matter. The HSE’s written submissions were delivered prior to the commencement of the new Practice Direction and the identification of these additional matters. Thus, while the written submissions are extremely helpful, they do not reflect the evolution of the issues in the case.

11. The medical evidence is contained in reports of Dr. K, Dr. B, and Dr. M. Dr. B, who is Mr. V’s treating psychiatrist, provided two reports. His first report was prepared for the purpose of the court’s consideration as to whether or not to admit Mr. V to wardship. It is described as a “Psychiatric Update” and is dated the 28th March 2024. On page 4 of this report, Dr. B states:

“...As previously outlined, and as a result of a complex medical mental disorder, [Mr. V] continues to lack decision-making capacity in all personal important areas affecting his welfare including his medical care and continues to be a person, therefore, of unsound mind.

The complex medication [Mr. V] is receiving with very significant benefit in my opinion exceeds the licensed dose and therefore off label affecting Zyprexa and also Zopiclone at night.

However, in my opinion also, [Mr. V] who lacks decision-making capacity in this important area continues to benefit from this medication which is to his benefit overall consistent with the new Assisted Decision-Making Act, according to the least restrictive most proportionate principle and should therefore in my opinion respectfully continue.”

12. Dr. B provided another report on the 17th February 2025. This was described as “a Capacity assessment for V in relation to the intention to appoint a DMR to represent his interests.” Dr. B stated:

“As a consequence of his health care conditions, [Mr. V] has always since I have known him lacked decision making capacity in relation to all aspects of his personal welfare and all decisions in relation to his health care including medical and psychiatric treatment.

Unfortunately due to the primary cause of his lack of capacity namely Autism Spectrum Disorder complicated by Severe Intellectual Disability, I do not foresee the situation changing for the foreseeable future.

Consequently, [Mr. V] is completely unable to understand all information relevant to any specific decision; he would most unlikely be able to retain the information relevant to the decision long enough to make a decision although given that he is non-verbal, and given his other conditions, it would not be possible to test that but I suspect that on the balance of probability that he would lack capacity to retain information long enough to make a decision.

Similarly, he would be unable to weigh up the pros and cons of making any particular decision or the consequences one way or the other of any decision he might make and finally, he would be unable to communicate any decision on any particular issue.

No amount of assistance either by front line health care staff who are very familiar with [Mr. V] or any other assistance would change his incapacity for all such issues going forward. Due to the level of his disability, even if the assistance of a suitable person as co-decision maker was available, [Mr. V] would continue to lack capacity.

His incapacity relates also to his finances and that is unlikely to change for the foreseeable future.”

13. Dr. K provided his report to the Court on the 26th July 2023. He said, inter alia:

“I assessed [Mr. V]’s capacity to manage his person and affairs, employing the functional assessment of capacity approach and utilising my broad assessment of engagement with [Mr. V], informant history from staff and review of detailed correspondence within his healthcare record. [Mr. V] requires variable assistance and supervision to address his personal care needs such as washing, toileting and eating. He evidently understands his basic needs in this regard but is unable to weigh up the details, the choices or risks. He does not present as understanding his needs from a healthcare perspective, engaging in treatment choices or weighing up the balance of benefit and risk in this regard. [Mr. V] does not present as understanding, retaining or weighing up issues relating to financial affairs.”

14. He went on to say “[Mr. V] has a spectrum of disabilities in terms of intellectual disability, autistic spectrum disorder and bipolar disorder. His condition is likely to be permanent and is not likely to improve or resolve over time.” He concluded that “It is my opinion that [Mr. V] is of unsound mind and incapable of managing his person and affairs.”

15. Dr. M had prepared a report on the 20th November 2023 in the context of the application to have Mr. V admitted to wardship. Dr. M reached similar conclusions. He said:

“Assessment of Capacity

[Mr. V] is unable to manage money, cannot buy things and is apparently unable to manage finances.

He gives no indication of understanding anything other than the most basic. For example, to get him to have his dinner, they show him a picture of a yogurt which he understands as ‘food’.

While [Mr. V] has preferences at this level, he would be unable to understand, process information relating to or make informed decisions about anything more complicated. His mood state varies constantly and his wishes and willingness to do things will vary with it. It is clear he can hold extremely simple information in mind for a short time but appears unlikely to be able to process opposing points of view to come to a considered decision.

[Mr. V] is unable to communicate his preferences about anything more complicated than the extremely banal.

As such, [Mr. V] is unable to satisfy any of the 4 tests of capacity. He must therefore be considered of unsound mind and unable to manage his person, affairs, well-being, health or placement.

Opinion

[Mr. V] suffers from Autism, Moderate Intellectual Disability, and has a history of Epileptic Seizures. He has demonstrated severely challenging behaviours since about 4 or 5 years old which were difficult to manage even within institutional settings and with medication.

Although [Mr. V] has been diagnosed with Bipolar Disorder, and his behaviour is challenging and often a risk to himself and others, I believe that [Mr. V] does not meet the criteria for a Mental Disorder under the terms of the Mental Health Act 2001 as his management does not require ongoing admission to an approved centre and can be adequately managed in his present environment in [the placement].

Given the diagnoses and length of his difficulties, the prognosis must be regarded as poor and his clinical state is unlikely to change with time or treatment.

[Mr. V] lacks capacity in relation to his person and affairs and is of unsound mind.

[Mr. V]’s present placement with its complement of staff appears to be well suited to managing a man with a complex and difficult presentation. Within my ability to discern his responses, [Mr. V] appears to be content and well cared for.”

16. As will, of course, be noted, in his first report Dr. B only expressly refers to Mr. V’s capacity in “all personal important areas affecting his welfare including his medical care” and does not touch on capacity in relation to his Property & Affairs. This is understandable given that the report was prepared for the purpose of the application to admit Mr. V to wardship and the immediate issue that gave rise to that application was the medical treatment of Mr. V. Nonetheless, Dr. B’s conclusion in that first report goes beyond the question of psychotropic medication and refers to “all...areas affecting his welfare”.

17. His second report obviously goes further in that it also expressly refers to Mr. V’s capacity in relation to “his finances”. It seems to me that on its correct reading it also expresses a view in relation to Mr. V’s capacity across all areas. Dr. B states that “[V] is unable to understand all information relevant to any specific decision” and that “he would be unable to weigh up the pros and cons of making any particular decision or the consequences one way or the other of any decision he might make and finally, he would be unable to communicate any decision on any particular issue” [emphasis added]. He then goes on to say that “[H]is incapacity relates also to his finances and that it is unlikely to change for the foreseeable future.”

18. It is possible to read Dr. B’s second report in a narrower way. Firstly, the structure of the report could suggest that the references to “any specific

decision” and “any particular decision” refer back to the statement two paragraphs earlier that “[Mr. V] has always since I have known him lacked

decision making capacity in relation to all aspects of his personal welfare and all decisions in relation to his health care including medical and psychiatric treatment.” If that is the case, then the “specific decisions” being referred to are decisions in the area of personal welfare and health care. Secondly, Dr. B separately confirms his view that Mr. V’s incapacity relates also to his finances. If the earlier paragraphs were intended to refer to decision-making in all areas, then it would not be necessary to separately refer to incapacity in relation to finances. Thirdly, there is an ambiguity about whether “finances” refers to Property & Affairs or just a narrow sub-set of that heading. However, it seems to me that this risks adopting an overly technical approach to reading a medical report which is not entirely appropriate. I am satisfied that Dr. B’s second report deals with Mr. V’s capacity across all areas. This is particularly so when it is read alongside the reports of Dr. K and Dr. M. Even if it does not, Dr. K and Dr. M’s report clearly do. I will therefore proceed on that basis.

19. It is against this factual and evidential basis that the proper application of the 2015 Act must be considered.

STATUTORY PROVISIONS

20. Before turning to the specific questions, I will set out some of the relevant statutory provisions. I do so at some length for ease of reference. I will also have to refer to some other provisions during the course of discussion.

21. The effect of sections 56(3) and 56(5) is that Mr. V can be admitted to wardship notwithstanding the repeal of the relevant provisions of the Lunacy Regulation (Ireland) Act and his capacity can be immediately reviewed for the purpose of his discharge from wardship. There is no dispute about this.

22. Section 2(1) of the 2015 Act provides that “capacity” means “decisionmaking capacity” and “shall be construed in accordance with section 3”. Section

3 provides, inter alia:

“(1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the

decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

...

(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.

(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters...”

23. Section 3 refers to “decision” singular. However, section 2 provides that “’decision’ includes a class of decisions”.

24. In Child and Family Agency v KK [2024] IECA 242, the Court of Appeal (Hogan J) recognised the changed approach to capacity introduced by the 2015 Act. He contrasted the old wardship approach involving a global assessment of capacity with the functional approach under the 2015 Act. Under the former, if the ward was found to lack capacity in one area, he or she was treated as lacking

decision-making capacity generally. Under the latter, Hogan J noted, “[T]he relevant person in question may, for instance, lack the capacity to make basic financial decisions but would nonetheless be fully capable of making a different type of decision, such as, for example a decision as to where he or she should reside.”

25. Section 2(1) also sets out a number of key definitions, including “relevant person”, “intervention”, and “matter concerned”. It is not necessary to quote them all now. I return to some of them later. It is worth noting the following definitions at this stage:

(i) ““decision-making representative”, in relation to a relevant person, means a person appointed pursuant to a decision-making representation order to make one or more than one decision specified in the order on behalf of the relevant person;

...”

(ii) ““person who lacks capacity” means a relevant person who falls within paragraph (b) of the definition of “relevant person” but only in relation to the matter or matters by virtue of which he or she falls within that paragraph;”

(iii) ““personal welfare”, in relation to a relevant person, means one or more of the following matters:

(a) accommodation, including whether or not the relevant person should live in a designated centre;

(b) participation by the relevant person in employment, education or training;

(c) participation by the relevant person in social activities;

(d) decisions on any social services provided or to be provided to the relevant person;

(e) healthcare;

(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety of performance of medical devices;

(f) other matters relating to the relevant person’s well-being”

(iv) ““property and affairs”, in relation to a relevant person, means one or more of the following matters:

(a) the custody, control and management of some or all of the relevant person’s property or property rights;

(b) the sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property;

(c) the acquisition of property by the relevant person, or on his or her behalf;

(d) the carrying on, on behalf of the relevant person, of any profession, trade or business which may lawfully be carried on by a person other than the relevant person;

(e) the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner;

(f) the carrying out of any contract entered into by the relevant person;

(g) the discharge of the relevant person’s debts, tax and duty liabilities and obligations or other obligations;

(h) the execution or exercise of any of the powers or discretions vested in the relevant person as a tenant for life;

(i) providing, to the extent that the relevant person might have been expected to do so, for the needs of a decision-making assistant, a co-

decision-maker, an attorney, a designated healthcare representative or a decision-making representative for the relevant person or for the needs of other persons;

(j) the conduct of proceedings before any court or tribunal, whether in the name of the relevant person or on his or her behalf;

(k) making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the relevant person in relation to those matters”

26. Section 8 sets out a set of guiding principles. The importance of these principles was recognised by Hogan J in Child and Family Agency v KK [2024] IECA 242. Hogan J said at paragraph 13 “...as Hyland J noted (at paras. 25 and 26) of her June 2023 judgment, the 2015 Act is more nuanced and proportionate in its approach. This is particularly reflected in s.8(6)(a) of the 2015 Act which provides that, henceforth judicial intervention in support of a relevant person will be made in a manner which seeks to minimise the restriction of the relevant person’s rights and general freedom of action. Any such intervention must be proportionate (s.8(6)(c)) and, where practicable, time limited (s.8(6)(d)).” Section 8(1) provides:

“The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.”

27. Section 8(2) provides:

“(2) It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.”

28. Section 8(5) and (6) provide:

“(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.

(6) An intervention in respect of a relevant person shall—

(a) be made in a manner that minimises—

(i) the restriction of the relevant person’s rights, and

(ii) the restriction of the relevant person’s freedom of action,

(b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the intervention, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.”

29. Sections 36 and 37, which are contained in Part 5 of the Act, provide that the Circuit Court may, on an application by a person listed in section 36, make one or both of the declarations set out in section 37(1)(a) and (b). These are a declaration “...that the relevant person...lacks capacity, unless the assistance of a suitable person as a co-decision maker is made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both” (subsection (1)(a)), or “that the relevant person...lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her, to make one or more than one decision specified in the declaration relating to his or her personal welfare or property and affairs, or both” (subsection (1)(b)).

30. Section 38(1) identifies the circumstances where section 38 applies and subsection (2) then provides:

“(2) Where this section applies, the court may make one or both of the following orders:

(a) an order making the decision or decisions concerned on behalf of the relevant person where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so;

(b) subject to subsection (7) and section 36, an order appointing a suitable person who has attained the age of 18 years to be a decisionmaking representative for the relevant person for the purposes of making one or more than one decision specified in the order on behalf of the relevant person in relation to his or her personal welfare or property and affairs, or both.”

31. As it is proposed that Mr. V will be admitted to wardship, the question of discharge and of decision support falls under section 55. Section 55 provides, inter alia:

“(1)The wardship court, on an application being made to it under section 54(1), or pursuant to section 54(2) or (3), shall-

(a) declare that the ward does not lack capacity, or

(b) make one or more than one of the following declarations:

(i) that the ward lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him or her, to make one or more than one decision;

(ii) that the ward lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her.

(2) Where the wardship court makes a declaration pursuant to subsection(1)(a), it shall immediately discharge the ward from wardship and shall order that the property of the person the subject of the declaration be returned to him or her and give such directions as it thinks appropriate having regard to both the discharge and the circumstances of that person.

…

(5) Where the wardship court makes a declaration pursuant to subsection (1)(b)(ii), it shall-

(a) make such orders and give such directions as it considers appropriate under Part 5 as if the wardship court were the court under Part 5, and

(b) discharge the ward from wardship upon the appointment of a decision-making representative in respect of him or her, and

(c) order that the property of the person the subject of the discharge from wardship under paragraph (b) be returned to him or her upon the appointment of a decision-making representative in respect of him or her.

(6) Where the wardship court is making an order or giving a direction under Part 5, to which subsection (4)(i) or subsection (5)(a) refers, subsections (4) to (12)

and subsection (14) of section 38 shall apply with any necessary modifications, and as if the ward, or the person the subject of a discharge from wardship under subsection (4)(ii) or (5)(b), as the case may be, were a relevant person.

(7) Sections 39 to 44 and sections 46 and 47 shall apply to decision-making representatives appointed, or to be appointed, by a wardship court under Part 5 as they apply to decision-making representatives appointed, or to be appointed, by a court under Part 5.

(8) A reference in section 45 to a decision-making representation order includes a reference to a decision-making representation order made by a wardship court.”

ISSUES

32. The original issue raised by the HSE concerned precisely what the medical visitor should be asked to assess for the purpose of Mr. V’s discharge application. The issue was whether the Court’s direction for an assessment of Mr. V’s capacity should be limited to the specific matters for which it was sought to admit him to wardship or at least to matters in which it is likely that decisions would have to be made in the relatively short term, or whether the medical visitor should simply be asked to carry out a functional capacity assessment.

33. The HSE submitted that the former is the correct approach. It was submitted that section 55(1) is mandatory and, therefore, the court must make a declaration in respect of any matter in relation to which there is evidence before the court; and if the court makes a declaration under section 55(1)(b)(ii) it would then have to make an order appointing a decision making representative in respect of matters covered by the declaration even though some of them may be irrelevant to the ward at the particular time because a

decision in those matters does not have to be made at that time. Thus, it was submitted, the effect of simply directing a functional capacity assessment would lead to the Court having evidence which covers the whole breadth of Personal Welfare and Property & Affairs (as defined in section 2) and this would compel the court to make a declaration under section 55(1)(b)(ii) (assuming that was the effect of the evidence) and to appoint a decision making representative over all of those matters.

34. The HSE says that in the circumstances of this case the only matters in which decisions will have to be made are “healthcare, medication and care plan” (see paragraph 3.28.1.1 of the HSE’s written submissions) (to which must now be added healthcare more generally, finances, and visiting arrangements), but if the Court has a global or general capacity assessment a declaration will be made and a decision-making representative will be appointed in respect of other matters also.

35. This, it was submitted, would not be in accordance with the requirement to ensure that any intervention is the least restrictive option possible because it would be extending beyond the immediate area of identified need. Therefore, it was submitted, the direction to the medical visitor should be limited.

36. However, in light of the procedural and factual changes described above, by the time the matter came on for hearing, this issue was no longer the focus. The focus at that stage was on:

(i) what declaration(s) can be made by the Court pursuant to section 55(1) in the circumstances of this case;

(ii) if the Court were to make a declaration under section 55(1)(b)(ii)

in respect of all matters, what would be the permitted scope of the

decision-making representation order, i.e. must the appointment of the

decision-making representative be limited to matters in which it is likely that a decision will have to be made in the relatively short term, or may it encompass all matters caught by the declaration.

37. While they were the focus, the original issue was not entirely irrelevant because it was accepted that the Court retains a discretion to seek a medical visitor’s report. Thus, if I were not satisfied with the existing evidence I could direct an assessment by a medical visitor.

DISCUSSION

38. Section 55 (and, indeed, other sections of the Act) give rise to significant interpretative difficulties.

39. I have not yet been asked to determine the application to admit Mr V to wardship or the application to discharge him. Indeed, on one view, the matter is moot in respect of the scope of the direction to the medical visitor and is premature in respect of what declaration(s) the Court should make and what

decision-support is appropriate, if any. However, in circumstances where the issue in principle is “...how [Mr. V’s] discharge from wardship can be managed to ensure that any decision-support appointed is in accordance with the principles of necessity, proportionality, and minimal intervention...” (paragraph

2.1 of the HSE’s written submissions), and where the questions which arise are interconnected, it is appropriate to deal with them.

40. If I had to determine the question of Mr. V’s capacity at this stage, I would be satisfied on the basis of the medical evidence set out above, for the reasons discussed in paragraphs 16-18, that Mr. V lacks capacity in relation to all matters within the definitions of Personal Welfare and Property & Affairs. The questions must be addressed on that basis and I therefore proceed on that basis.

Declarations pursuant to section 55(1)

41. In relation to the first issue, i.e. what declaration(s) the Court may make, the HSE submitted that on one interpretation of the Act, the Court is only permitted to make a declaration of lack of capacity in relation to matter(s) in which decisions are likely to have to be made in the immediate or short term, even if it is satisfied that Mr. V lacks capacity in respect of other matters. To do otherwise, it was submitted, would be to make declarations which are unnecessary and disproportionate. In this case, it was submitted that the only matters of relevance were healthcare, medication and care planning. Of course, to these must be added healthcare more generally, finances, and visiting arrangements.

42. The HSE accepted that the Act might be open to the alternative interpretation that a declaration can be made in respect of all matters. However, it was stated that the former was the HSE’s preferred interpretation.

43. I do not believe that the former is the correct interpretation.

44. I accept that there is some support for this interpretation in the Act. Section 3 makes clear that a person’s capacity shall be assessed on the basis of his ability to understand the nature and consequences of a decision at the time that the decision is to be made. This supports an interpretation that the Court should not make a declaration of a lack of capacity unless a decision has to be made or is likely to have to be made shortly. Furthermore, the guiding principles contained in section 8 require that any intervention be made in a manner that minimises the restriction of the person’s rights and freedom of action, has due regard to the need to respect the person’s right to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property, be proportionate, and be as limited in duration as possible. A declaration under section 55(1) is an ‘intervention’. It could be said that the making of a declaration in respect of a matter in which a decision does not have to be made at that time would be unnecessary and therefore not in accordance with those principles. Thus, there is some basis for saying that section 55(1) should be interpreted as only permitting a declaration of lack of capacity in respect of matters in which a decision has to be made at that point in time or in which a

decision will shortly have to be made.

45. However, it seems to me that such an interpretation disregards the express mandatory terms of section 55(1) and the effect of those terms. Section 55(1) provides that when an application pursuant to section 54(1) comes before

the Court, the Court must make one or more of the declarations set out in section 55(1). The declarations which a court may make are:

(i) a declaration that the ward does not lack capacity, or

(ii) a declaration that the ward lacks capacity, unless the assistance of a suitable person as a co-decision-maker is made available to him, to make one or more than one decision;

(iii) a declaration that the ward lacks capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him or her.

46. The Court has no discretion as to whether or not to make a declaration under section 55(1) upon an application coming before it. Of course, that is subject to the point that the Court can only make a declaration in relation to matters upon which it has evidence. The effect of the mandatory nature of the section is that, if there is evidence on the question of capacity in respect of a particular matter or area the Court, must make one or more of those declarations. It can not decline to make a declaration. If the evidence is of lack of capacity, then the Court must make one of the declarations under section 55(1)(b).

47. The logic of the interpretation suggested by the HSE is that, even if the evidence clearly establishes that the ward lacks capacity in respect of a particular matter, the Court can not make a declaration that the ward lacks capacity in relation to that matter unless it is also satisfied that it is likely that a decision will have to be made in the immediate term in respect of that matter. The fundamental flaw in that interpretation is that, due to the mandatory nature of section 55(1), the Court would have to make some declaration in respect of the matter. The only other alternative is a declaration under section 55(1)(a) but that would mean that the Court would be declaring that the person does not lack capacity. This would fly in the face of the evidence and would be absurd. In this case, for example, I am entirely satisfied that the evidence establishes that Mr. V lacks capacity in relation to his “finances”. However, if, when the application has to be determined, there was no evidence that a decision was going to have to be made in that area, then the Court would be compelled to make a declaration that Mr. V does not lack capacity in relation to finances. An interpretation which compels a declaration to be made which is contrary to the evidence can not be the correct interpretation.

48. It was submitted on behalf of the HSE that an interpretation which permits a declaration of lack of capacity in respect of matters beyond those in which decisions have to be made would place Mr. V in a less favourable position than persons who are the subject of an application to the Circuit Court under section 37. However, it seems to me that a difference in treatment is envisaged by the Act. Section 55(1) is mandatory and requires the Court to make one of the declarations in the section. Section 37, under which applications for declarations come before the Circuit Court, is discretionary in its terms.

49. Therefore, I do not accept that the Court is limited to making declarations in respect of matters in which decisions have to be made at that point in time or are likely to have to be made in the relatively near future (for example, before the matter is to be reviewed by the Circuit Court on foot of the discharge order).

50. In light of the evidence as it currently stands in respect of Mr. V’s capacity, the Court would have to make a declaration under section 55(1)(b)(ii) in respect of all matters under the headings Personal Welfare and Property and Affairs.

51. A number of other issues were canvassed during the course of the hearing, including whether the Court may make different declarations in respect of different matters, and whether declarations must be made in respect of each of the individual matters set out within the definitions of the broad categories of Personal Welfare and Property & Affairs or whether they may be made in respect of the broad areas of Personal Welfare and Property & Affairs. However, in light of my view of the evidence, i.e., that Mr. V lacks capacity in all Personal Welfare and Property & Affairs matters even if the assistance of a co-decisionmaker were made available to him, it is not necessary to determine these issues.

Appointment of decision-making representative

52. Section 55(5) provides that where a court makes a declaration pursuant to section 55(1)(b)(ii) it must make such orders and give such directions as it considers appropriate under Part 5 of the Act. This includes the appointment of a decision-making representative. The Court must discharge the ward from wardship upon the appointment of a decision-making representative. The question that arises, and is at the real heart of the HSE’s concerns, is whether, where a declaration is made under section 55(1)(b)(ii), the Court must appoint a decision-making representative in respect of all matters covered by that declaration (which in this case would be in respect of Personal Welfare and Property & Affairs) or whether the appointment may be limited to specific matters or areas. This was described by counsel for the HSE as the main point of disagreement between the HSE and the guardian ad litem.

53. In my view, the Act, properly interpreted, does not compel either outcome.

54. Whether or not the Court may or should appoint a decision-making representative in respect of particular matters in a particular case must be informed by the circumstances of the case and by the guiding principles in section 8. It is not necessary to recite these in full again (they are set out at paragraphs 26-28 above). It is sufficient to note that such an appointment is an intervention within the meaning of the Act and, as such, shall only be made when necessary and must be proportionate. I use these adjectives to capture the various principles contained in section 8.

55. It was the HSE’s position that the appropriate test of whether a decisionmaking representative in respect of a particular matter is necessary and proportionate is whether a decision in relation to that matter has to be made or will shortly have to be made. It was submitted that in the circumstances of this case this means that a decision-making representative can or should only be appointed to healthcare (and, presumably, healthcare generally, finances and visiting arrangements).

56. I accept the point made on behalf of the guardian ad litem that this approach to necessity or proportionality is overly restrictive in Mr. V’s case and that “the appointment of a decision-making representative to [Mr. V], to make decisions which he has been assessed as lacking capacity to make, rather than on the basis of whether those decisions actually require to be made at the time of the application, does not, in the Guardian ad litem’s submission, trespass on Mr. [V]’s rights in such a way as to breach the guiding principles. Rather, it respects Mr. [V]’s right to make decisions by actually providing him with the necessary support and mechanism to do so.” The effect of necessity being determined by whether a decision has to, or will shortly have to, be made in a case where capacity has already been determined (subject to review by the Circuit Court) is that Mr. V would be deprived of the opportunity for decisions to be made in respect of matters in which he does not have capacity without repeated applications to the Circuit Court. If nothing more, this would cause a depletion of Mr. V’s assets.

57. The circumstances of this case are that, for the reasons outlined above, the Court can not decline to make a declaration in respect of capacity and the evidence is that Mr. V lacks capacity in respect of all matters relating to Personal Welfare and Property and Affairs. Thus, the declaration that will be made (on the basis of the current evidence) is a declaration under section 55(1)(b)(ii) that Mr. V lacks capacity to make decisions in respect of those matters. It follows that, if Mr. V is to be able to make decisions, it is necessary that a decisionmaking representative be appointed in respect of those matters.

58. Section 8(6)(b) requires that any intervention (including the appointment of a decision-making representative) must have regard to “the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property”. This, of course, as a general proposition, supports the view that, where possible (in order to ensure that the relevant person has as much autonomy as possible), a decision-making representative should not be appointed. However, the relevant circumstances in this case are that Mr. V lacks capacity in respect of all matters and were I to make a declaration, it would be to that effect. Indeed, the appointment of a

decision-making representative would not in real terms impact any further on his rights to autonomy or freedom of action. Thus, in order to maximise his rights, it is necessary and proportionate that a decision-making representative be appointed. That decision-making representative is, of course, subject to the obligations in section 8 in the exercise of his or her functions. I return to this below.

59. There is some support for the HSE’s position in section 3 of the Act. It provides, inter alia, that “...a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at the time”, i.e. it provides for decision (including class of decision) specific assessment. However, section 3 is concerned with the assessment of capacity itself rather than the scope of any decision-making representative. As an aside, I am not sure that section 3 requires that the assessment of capacity must be conducted at the time that a particular decision is to be made. One reason for doubting that interpretation is that it would appear to be inconsistent with the definition of “decision” as including “a class of decisions” because individual decisions within that class may well have to be made at different times. The more correct understanding seems to me to be that when the person’s capacity is being assessed functionally it must be done on the basis of assessing the person’s ability to understand the nature and consequences of the decision in the context of the available choices at that time if a decision was to be made. I do not have to decide this issue and it is better left to a case in which it is necessary to decide it and there is full argument.

60. It was also submitted on behalf of the HSE that the appointment of a

decision-making representative to Personal Welfare and Property & Affairs would give him or her very significant and broad powers and this may lead to, for example, a decision-making representative selling the relevant person’s house, even though the person’s spouse or children might be living there. However, any decision-making representative is subject to the obligations contained in section 8. These include, for the purpose of the example given, the requirement in section 8(5) that the decision-making representative should not make an intervention (such as selling the house) “unless it is necessary to do so having regard to the individual circumstances of the relevant person”. They also include the requirements in section 8(7) to permit, encourage and facilitate the participation of the relevant person, to give effect to his or her will and preference, to act at all times in good faith and for the benefit of the relevant person and to consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant. This is not an exhaustive list. Section 38(11) provides that when appointing a decision-making representative the Court shall require him or her to sign a statement indicating that he or she understands and undertakes to act in accordance with the guiding principles set out in section 8. Furthermore, sections 36 and 37 provide for applications by specified categories of persons for a declaration as to the lawfulness of an intervention proposed to be made. Thus, I do not accept that the fact that a decision-making representative would have significant power means that his or her appointment is unnecessary or disproportionate.

61. The point was also made on behalf of the HSE that the appointment of a

decision-making representative to all matters would be the equivalent of the former wardship system. As noted above, the Court of Appeal in The Child and Family Agency v KK [2024] IECA 242 emphasised the fundamental difference between the wardship system and the new assisted-decision-making system under the 2015 Act. It was argued on behalf of the HSE that this must mean that a decision-making representative should not be appointed in respect of all matters. I do not think that one follows the other. Under the old wardship regime a person lost all decision-making autonomy once they were taken into wardship, even in areas in which they did not lack capacity. As it is put in paragraph 3.12 of the HSE’s written submissions, the wardship system was “essentially binary” in nature, a person was “either taken in or not, with all decisions then made by the court/committee”. Under the system established by the 2015 Act, if a person is found to lack capacity in respect of one area or matter, any interference with his or her decision-making autonomy is limited to that area or matter. However, in this case, the evidence is that Mr. V lacks capacity in all areas or matters. That evidence is based on a functional capacity assessment. Thus, I do not believe that the appointment of a decision-making representative in respect of matters in which a decision does not have to be made at that point in time or shortly thereafter, where the person lacks capacity in all matters, is the equivalent of wardship.

62. On that basis, in the circumstances of this case, it is necessary and proportionate to appoint a decision-making representative to the areas of Personal Welfare and Property & Affairs.

63. However, that is not the end of the matter. The proper application of the guiding principles still requires that if it is not necessary in a specific case to include a particular matter in the decision-making representation order then that should be excluded from the order. As discussed, the mere fact that a particular decision does not have to be made at that point in time or shortly thereafter does not make the appointment of a decision-making representative unnecessary or disproportionate. However, if there is evidence that it is unlikely that a decision will have to be made at any stage in respect of a particular matter then that matter can and should be excluded from the decision-making representation order. For example, in circumstances where Mr. V has never been involved in a partnership (assuming for the purpose of discussion that to be the case), then “the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner” may, and should, be excluded from the decision-making representation order.

64. Thus, the correct approach in this case, where Mr. V has been determined to lack capacity in respect of all Personal Welfare and Property & Affairs matters, is that a decision-making representative should be appointed over those matters and specified matters should be excluded from the order if the evidence shows that they are matters in which decisions will not or are unlikely to have to be made at any stage. There is currently no evidence in relation to such matters. There is now an opportunity for such evidence to be adduced, if any party is asking that the order should exclude any particular matters.

65. It is important to emphasise that this approach is the one that applies to a person in Mr. V’s position, i.e. he has been a ward of court and, on review under section 55(1), he has been found to lack capacity in all matters of Personal Welfare and Property & Affairs. The exercise that the Circuit Court is engaged in when an application is made under section 37(1) is different.

66. Of course, in the event that a particular matter is excluded from a

decision-making representation order, then the Circuit Court is available to consider the appointment of a decision-making representative to make a

decision in respect of that matter, if that subsequently becomes necessary.

MEDICAL VISITOR

67. In light of the provisions of Practice Direction HC 133 and the existence and contents of the medical evidence of Dr. B, Dr. K and Dr. M, and my view of that evidence, it is not strictly necessary for me to determine the original issue, i.e., the question of what the medical visitor should or may be asked to assess. However, lest I am wrong in my view of that evidence, I think I should deal with the point. I also think it is appropriate and necessary to do so in the following circumstances. The 2015 Act requires that all persons in wardship be discharged on or before the 25th April 2026. There are currently approximately 1400 individuals in wardship. Applications for reviews leading to discharge have already been made in respect of a very significant number of individuals, including, in a very large number of cases, at the instance of the President. A large number of other applications are likely to be made over the next number of months. Thus, the question of what evidence is required, and in particular, what the Court should or may ask a medical visitor to assess and report upon is a question of systemic importance that will likely have to be resolved. As all wards must be discharged by next April, it is appropriate that this issue be determined.

68. The HSE advanced two bases upon which it was contended that the Court should only ask the medical visitor to assess capacity in respect of matters in which there is a basis for doubting the ward’s capacity or in which decisions are likely to have to be made in the short term.

69. Firstly, it was submitted that as the appointment of a medical visitor is itself an “intervention” within the meaning of the Act, it is therefore governed by the guiding principles in section 8, and a request to assess capacity in areas which are not relevant is unnecessary and disproportionate in itself. It was submitted that, in this case the only reason why Mr. V is being admitted to wardship is for decisions to be made in respect of medication and a care plan, and, therefore, it would be disproportionate and unnecessary for him to be subjected to an assessment of his capacity outside of those areas.

70. Secondly, it was also submitted, as discussed at length above, that the effect of requesting a medical visitor to simply carry out a functional capacity assessment without limitations may be to compel the Court to make a declaration and appoint a decision-making representative in respect of areas which are irrelevant and unnecessary and, therefore, such a request is disproportionate. The HSE’s position is summarised in, inter alia, paragraph 4.2 of the written submissions:

“4.2 If the court has evidence before it in relation to all aspects of [Mr. V’s] personal welfare and property and affairs (as defined) the court is mandated by section 55(1) to either a) discharge him or her from wardship b) declare that he requires a CDM or c) declare that he requires a DMR. This would likely result in [Mr. V] having decision-support appointed in respect of all of his personal welfare and property and affairs as defined, which is not necessary or proportionate and does not reflect the least restrictive intervention having regard to the primary issue in the case being [Mr. V’s] healthcare, medication, care plan.”

71. I am satisfied that were it necessary to obtain a report from the medical visitor, the correct approach would be to ask the medical visitor to simply carry out a functional capacity assessment and not to constrain him or her in the exercise of his or her functions. I am of this view for a number of reasons.

72. Firstly, the underlying premise or concern leading to the submission that a medical visitor should only be asked to assess capacity in areas in which decisions are likely to have to be made in the short term is misplaced or does not arise. As previously discussed, the HSE’s point was that it may lead automatically to the unnecessary appointment of a decision-making representative in respect of some matters. I have dealt with that above.

73. Secondly, the approach of sending a focused or limited request to the medical visitor presupposes that the Court will know at that stage the areas in which the person may lack capacity and/or the areas in which a decision may have to be made in the short term. Otherwise, the Court would not be able to fashion an appropriately tailored request. There will be some cases where the specific matters in which capacity is in doubt, and decision support may be immediately necessary, will be obvious, but in many other instances that will not be the case. Even in those cases in which some areas are obvious, it does not follow that the person does not lack capacity in other areas.

74. Thirdly, the effect of this approach would be to potentially deprive the ward of necessary protection and assistance following discharge. On a particular set of facts, for example, it may be clear that a ward may lack capacity in the specific area of healthcare. On the suggested approach, a medical visitor would be appointed to assess capacity in respect of that matter only, but the person may also lack capacity in respect of property and finances. However, because the request to the medical visitor would be limited to healthcare and the visitor would therefore be constrained to assessing capacity in that area only, the ward would be deprived of the possibility of any consideration of capacity, and the possible need for decision support, in the areas of property and finances. That in itself gives rise to a potential absence of protection for the person upon discharge. That does not seem to me to be consistent with the purpose of the 2015 Act or, indeed, the guiding principles in section 8, and does not seem to me to be consistent with the vindication of the ward’s rights.

CONCLUSION

75. In summary:

(i) The evidence available at this stage establishes that Mr. V lacks capacity to make decisions on all matters in respect of his Personal Welfare and Property & Affairs;

(ii) It is not necessary to direct a medical visitor to conduct a functional capacity assessment;

(iii) If the evidence remains the same, the Court will, when asked to determine the applications to admit Mr. V to wardship and then to review his capacity for the purpose of his discharge, make a declaration pursuant to section 55(1)(b)(ii) in respect of Personal Welfare and Property & Affairs;

(iv) On the basis of the evidence as it currently stands, it would be necessary and proportionate in those circumstances to appoint a decision-making representative in respect of all matters under Personal Welfare and Property & Affairs;

(v) In the event that evidence, which can now be adduced, shows that a

decision in respect of a particular matter will not have to be or is unlikely to have to be made at any stage then that matter should be excluded from the

decision-making representation order;

(vi) As this matter came before me on the basis of how Mr. V’s discharge may be managed in the particular circumstances, there is now an opportunity for the parties to adduce evidence in respect of matters which they say should be excluded from the Order on that basis, if any;

(vii) If it was necessary to obtain a functional capacity assessment report from a medical visitor, the Court should not limit the direction for a functional capacity assessment to Mr. V’s capacity in respect of specified matters.