High Court discharges ward from Autism Spectrum Disorder without decision-making support due to preserved capacity.

THE HIGH COURT

WARDS OF COURT

[2026] IEHC 447

[WOC 9190]

IN THE MATTER OF Q, A WARD OF COURT, AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 55 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT

RESPONDENT

Ex Tempore Ruling of Mr. Justice Mark Heslin delivered on the 24th day of April 2026

Introduction

1. I am grateful to Ms. Dillon BL who moves this discharge application regarding Mr. [Q] (otherwise the respondent). There has been, for some time, orders in place under the court’s Wardship jurisdiction with respect to the respondent’s welfare and there is also a review of same listed for today.

Background

2. In terms of certain basic facts, the respondent is a young man who was admitted to Minor Wardship in [the 2010s], in order to receive specialist care abroad in the context of, among other things, concerns regarding risk to self and others. He was subsequently admitted as an adult Ward of this Court, and the General Solicitor is his committee.

3. According to the evidence before me, his diagnoses include Autism Spectrum Disorder and Mood Disorder. He does not have an intellectual disability.

4. I think it is fair to say from the evidence that the respondent lives somewhat of a solitary existence. His parents are separated, he has [a number of] younger siblings, but for some time now his wish has been not to have contact with family. He is independent in the activities of daily living, however, up to now he has received supports and indeed supervision on foot of orders made by this Court under its Wardship jurisdiction. These orders have impacted on his autonomy.

Respondent’s wishes

5. The respondent wishes to leave Wardship. He has it made ‘crystal’ clear to Ms. Dillon that he wishes to leave Wardship without decision-making support and he objects to the continuation of any orders which would impact on him.

6. Mr. Leahy, Solicitor, acts as the respondent’s Independent Solicitor in that regard and has instructed Ms. Hill SC. Mr. Leahy SC acts for the HSE in relation to the welfare review and makes clear in his helpful submission that no application is brought under this Court’s inherent jurisdiction.

Entirety of evidence

7. I want to make clear, and it will become obvious from this ruling, that I have very carefully considered the entirety of the written evidence before me in respect of both the discharge and the welfare review. As to the latter, as well as Dr. [R]’s reporting, which I will presently come to, I have carefully considered the contents of the exhibits to Ms. Kelleher’s affidavit including the 19 April 2026 individual-centred risk assessment and action form as well as the 21 April case review.

Development in reporting

8. As Mr. Brady BL submits, in the context of the welfare review, the committee is not arguing that one clinical view over another is the correct one today. However, in Mr. Brady’s submission, he refers to what I think he understandably describes as a “significant development” in the form of reporting by Dr. [R]. Equally, it is made crystal clear that Dr. [R] is not the committee’s witness and the General Solicitor is not formally making any application for an adjournment.

Proceeding with discharge

9. Let me make very clear that I have given careful thought, even in advance of hearing such helpful submissions, to the question of whether, viewed through the ‘lens’ of best interests, this Court exercising its Wardship jurisdiction should not proceed to hear the discharge application. However, I am satisfied that I can safely discharge the obligation on this Court under s.54 [of the 2015 Act] on the evidence before me and to do so is consistent with the position of the respondent, as explained by Ms. Hill SC on his behalf.

Medical evidence

10. To turn to the medical evidence, I am proposing to begin with the views expressed in a very detailed report by Dr. [S]. The following brief extracts from Dr. [S]’s 26 February 2026 report do not do justice to how comprehensive it is but capture the essence.

Capacity

11. As to capacity Dr. [S] opines, among other things:

• Mr. [Q] “understands that without the level of support that he is currently provided with he is likely to act in a way that could be detrimental to his wellbeing”. Later:

• “It is evident that Mr. [Q] has the ability to retain information and to make a voluntary choice”. Later still:

• “He was able to discuss the pros and cons of his decisions; he was able to weigh his wants against the risks”.

• Mr. [Q] “was able to consider ‘what if’ scenarios and identify the likely outcomes. He was able to prioritise information as to how it was important to him”.

• Regarding communication, Dr. [S], reports that Mr. [Q] has “no deficits” in this regard.

Support needs

12. On the question of the respondent’s support needs Dr. [S] proceeds to say, inter alia, the following at s.8 of her report: –

Mr. [Q] “has a number of issues that require support, but he also should be treated as an autonomous individual with capacity in these matters. Capacity and support are not interdependent. His support needs are based on him. He has the ability to choose whether to accept the support offered.”

Mr. [Q] “has developed a dependency on staff to “keep him safe”. This is in no small part due to the long period of institutionalisation that commenced with his mid-teenage years.”

Mr. [Q] “states that he does not wish supervision. However, he also makes no effort to evade or avoid it.”

Mr. [Q] “has had limited experience to the reality of budgeting or independent living. This is not a factor that limits his capacity, in much the same way as any other adult leaving home for the first time lacks experience, he needs the opportunity to learn.”

Mr. [Q] “has capacity to make decisions including those that may be illegal and if this should happen then it is imperative that normal legal procedures are followed.”

“It is my opinion that over time Mr. [Q] should be facilitated to move to a more independent living setting. He should be empowered to make appropriate decisions and to have support to do this. This again will take some time but to fail to do so will only cause him to become increasingly dependent and institutionalised rather than prompting his independence and autonomy.”

“I would advocate that over the next six months Mr. [Q] is provided with a care plan that allows him to have greater opportunity for independent time, management of his own resources and reducing supervision.

It would be my opinion that this progression to more independence should be structured and explained to Mr. [Q]. He has the ability to understand that the reason for a graduated approach and should be involved in the planning process.”

Medical view

13. I pause to say that the draft “care contract” which was included in the papers on the welfare side has, as I understand it now, been signed by Mr. [Q], entirely consistent with the views which I have referred to by Dr. [S]. She concludes her report by stating inter alia as follows:

Mr. [Q] “is a 24-year-old man with a diagnosis of Autism Spectrum Disorder. He has been involved in significant self-harm in the past and continues to have specific interests in niche areas that are socially unacceptable. It is my opinion based on a functional assessment that Mr. [Q] currently has capacity to make decisions relating to his welfare and financial matters.

It is my opinion Mr. [Q] has capacity. He cannot come within the remit of High Court with respect to granting of orders under its jurisdiction. It is my opinion Mr. [Q] should be supported to gradually regain his independence and to increase his personal responsibility.

This will take some time, and I would suggest that over the next six months a graduated approach is used.”

Contrasting medical views

14. Those views contrasted sharply with those of Professor [T], a consultant psychiatrist who conducted an assessment some 11 months earlier, on 6 June 2025, and who recommended the appointment of a co-decision-maker as being necessary in relation to property and affairs decisions and opined that a decision-making representative was required in relation to personal welfare decisions.

Supplemental reporting

15. However, I also have the benefit of Professor [T]’s supplemental reporting of 18 March 2026 in which Professor [T] makes clear that since his initial report he and Dr. [S] have liaised. They have had detailed discussions regarding the nature and findings of their respective assessments. Emphasising the complexity of the case, he makes clear that the following points, which he agreed to document, have now been agreed: - “Points of consensus agreed: Dr. [S] and I agreed with and accept each other's report, specifically, regarding the finding of our capacity assessments noting the differences in our findings” and he refers to those differences. He goes on to say:

“We both noted the significant time difference between the completion of our two assessments - nearly 11 months - and the fact that Mr. [Q]'s awareness and understanding of the various capacity assessments may have been enhanced with the associated discussions and related meetings with legal professionals that took place in the intervening time. He also had a meeting with Ms. Dillon after my initial assessment in June 2025. These various engagements and discussions may have enhanced Mr. [Q]’s capacity as assessed by Dr. [S]. We agreed that, in general, capacity for decision-making is functional and dynamic in nature and can change and in some cases can change based on the development of skills and understanding and in particular with a case like Mr. [Q] whose underlying diagnosis does not preclude the development of capacity. This point was highlighted by me in my assessment report of June 2025 as highlighted by the following” and he quotes as follows:

“Regarding Mr. [Q]’s functional assessment of his capacity to issues associated with personal welfare I assessed this as impaired and lacking capacity with a lack of capacity to understand the information relevant to the decision in depth and consequence and to weigh up the related information in a comprehensive or clear manner. I discussed his capacity to understand his realistic options for future living arrangements. He demonstrated an inability to weigh up information in order to make a decision.”

16. He places the following sentence in bold: “With more experience he may gain capacity in this area of decision-making and attain more independence but not at this point in time.”

17. What emerges from the foregoing is that neither consultant psychiatrist takes issue with the other's findings. Furthermore, the difference between the reports in temporal terms is almost a year and both agree that capacity is time and issue specific. The assessments concern a gentleman who not only does not have an intellectual disability but is, on the evidence, someone with potential to gain capacity. On the balance of probabilities, the views of Dr. [S] can be explained in the manner suggested by Professor [T]. I do not think this Court is straying into error by keeping in mind the young age of the respondent, but it is certainly the case that there are no longer unresolved or unresolvable differences between the two opinions.

Guiding principles

18. Professor [T] does not challenge Dr. [S]’s views, and I say this keeping in mind the “guiding principles” in s.8 of the 2015 Act, in particular, the presumption of capacity.

Placement

19. That is not, of course, the end of the medical evidence before me. Had it been, I think there’s a fairly obvious outcome that the court would have reached. However, I now also have the benefit of, and I have given very careful consideration to, a most detailed report of 20 April by Dr. [R], a consultant forensic psychiatrist, within [named service provider] being the placement where the respondent received care between 2017 and 2023.

Complex issues

20. Dr. [R] assessed the respondent in person on 26 March 2026 and, as his report explains, he also considered a wealth of written material, including, other functional capacity assessments. I think it is fair to say that significant themes which emerge from Dr. [R]’s report include how complex the issue of capacity is, particularly in this very complex case, having regard to, among other things, the impact of ASD and the question of risk.

Risk profile

21. Dr. [R]’s report explores the respondent’s diagnostic profile, his clinical history, and his presentation, as well as risk considerations. As to the question of risk - and I apologise if this is difficult for the relevant person himself to hear, but it seems to me to be relevant evidence - a ‘risk summary profile’ is set out in paragraph 4.2 onwards of Dr. [R]’s report and briefly put, Dr. [R] assesses risks at this juncture as follows: “Risk of completed suicide (accidental/intentional) - currently low to medium due to current procedural and relational support measures” and he goes on to specify a number of matters beginning with the following: “Autistic young men face significantly high risk of suicide and self-harm compared to their non-autistic peers”.

22. With regard to the risk of self-injurious behaviour, Dr. [R] assesses this as “currently low to moderate, with current relational and procedural support” going on to say that this has reduced over the recent year in Mr. [Q]’s case, but “would likely increase, potentially rapidly, on re-emergence of crises and needs to be carefully monitored with reducing support structures”. Risk of assaultive behaviour is assessed as low, as is risk of substance use. Risk of non-compliance with medication is assessed as currently high. Risk of arson - there is said to be evidence in history to suggest a risk of fire-setting, associated with low mood and suicidal ideation. As to weapons use, there exists no specific history to indicate there is a risk to others. Harm from others (vulnerability) is assessed as potentially high, with Dr. [R] saying Mr. [Q] is “at risk of victimisation or exploitation, and potential harm in vulnerable situations”. Risk of property destruction is assessed as low. On the question of risk, I also have the benefit of an assessment, as recently as today, by clinical forensic psychologist Dr. [U], which I will presently come to.

Progress

23. Dr. [R] also acknowledges, explicitly, that the respondent has clearly made progress since his return to Ireland.

Insight

24. In Dr. [R]’s view there is significant evidence that the respondent lacks insight regarding his challenges as a result of ASD and his support needs, and that many aspects of ASD, especially thinking style, directly impact on the respondent’s decision-making capacity some of which decisions would involve consequential risk. However, it seems to me that Dr. [R] also makes clear that lack of insight does not automatically mean lack of capacity. Rather, the question is how the lack of insight impacts on decision-making. On that issue Dr. [R] states inter alia the following [at para.3.240]: -

“Mr. [Q] demonstrates notably limited insight into his mental health condition. He acknowledges a diagnosis of Autistic Spectrum Condition and associates this with difficulties in social interaction and communication and the limitations this puts on his life. He is nevertheless very limited in understanding or accepting that his strategies for dealing with these issues, such as isolation, withdrawal and lack of support from services are likely to have difficult consequences in their own right. He could not acknowledge these issues in any real way as he felt that, in a very concrete way, discharge of Wardship would indicate the termination of support needs.

It appeared at this examination, that Mr. [Q] was unable to consider the risks involved in abrupt cessation of the prescribed medication in terms of risk of low mood, suicidality, return of dark thoughts and potential risk to self and others”

Care plan

25. I pause to say that, on these issues, I also have other evidence, namely the development of the care plan, executed by Mr. [Q], which speaks to support continuing at least for the time being. There is also an analysis in relation to the decision to discontinue medication offered by Dr. [U], which casts light on the analysis involved in that decision, at least as understood by Dr. [U]. Later, at para. 4.87, Dr. [R] opines: -

“Whilst there is less concern regarding Mr. [Q]’s ability to retain information and communicate his decisions, I believe that it is Mr. [Q]’s ability to fully consider the information available to make a decision and his understanding of that information is impaired due to his mental health condition. Specifically, his weighing of the consequences of his decisions, and especially those that are likely to lead to risk (to self or others), is negatively impacted upon by the nature of his condition, accentuated by his current lack of insight.”

26. Dr. [R] goes on to highlight the difference between the respondent not agreeing with, as opposed to being unable to agree with, recommended treatment and he opines in the latter half of para. 4.88:-

“It appears, given the historical and current clinical information within his assessment, Mr.

[Q] suffers from a condition, the direct consequences of which, renders him unable to agree to at least some important aspects of his life and especially in relation to his current welfare, care and support needs.”

Primary concern

27. What I take from Dr. [R]’s opinion is that, in terms of functional capacity, the primary concern raised by Dr. [R] can be put as follows: due to the respondent’s condition he has significant difficulties in understanding, or reflecting on, the impact of his decisions and behaviours.

Clinical analysis

28. However, I do not understand Dr. [R] to be saying definitively that, because of this, his view is that the respondent lacks decision making capacity. Indeed, Dr. [R] emphasises that his views are clinically based and are not intended, he makes explicit, to be a legal analysis, i.e. they are offered to assist the court, and this it is something I am enormously grateful to Dr. [R] for, and similarly, I want to express my gratitude to all the clinicians.

29. Dr. [R] also states the following at para. 4.78 which seems to me to be at the ‘heart’ of the concern:

“My overarching opinion is that any assessment of capacity needs to be fully cognisant of the presence and nuanced impact of Autistic Spectrum Disorder. Whilst a person’s decisionmaking capacity can fluctuate, some of the fundamental principles that impact Mr. [Q]’s capacity do not fluctuate to a great extent over time. It is, however, notable that his engagement with assessments and his specific responses to questions may give a relatively different assumption of capacity between assessments.”

30. The complexity of the issue of capacity and Dr. [R]’s concerns are also evident from the following passages of Dr. [R]’s report which, again, seems to me to leave open and unresolved whether decision-making capacity is absent due to the respondent's condition impairing his ability to consider consequences. Dr. [R] puts it as follows at para. 4.93 and 4.94: -

“It is evident that Mr. [Q] has appeared to progress well and relatively safely over the recent

3 years since his return to Ireland. He has been ‘accepting’ and appearing to benefit from the support package from [named service provider]. His current opinions on his intention to continue to accept support, or indeed, if he requires support, appears to be that he is only willing to accept support to the extent of finding his accommodation.”

31. I pause to say that this may not be entirely so, given the contract of care executed. Dr. [R] proceeds: -

“Once in his accommodation, he appears to deny the requirement for any support, including psychological support, such as his individual sessions with Dr. [U], supportive monitoring from the community mental health team or support from [named service provider].

It may be viewed that this is a simple culmination of many years in services and a person deciding to ‘go it alone’. My concern is this apparent inability to consider the options for future support is a product of an Autistic Spectrum Disorder. Furthermore, he appears unable to fully consider the important sequential decisions required to maximise his chances of success for medium to long-term.”

Court’s role

32. I am most grateful to Dr. [R] for this subtle and detailed clinical analysis. I remind myself, at this juncture, that the court’s role is a particular one and in discharging that role I am bound by the guiding principles in s.8 of the 2015 Act which include the presumption of capacity unless the contrary is shown; and that the court shall not make an intervention unless it is necessary in the circumstances. That, of course, is an articulation of the proportionality principle, as well as the principle that a person shall not be considered as unable to make a decision merely by reason of making, or having made, or being likely to make an unwise decision.

‘Unwise decision’

33. Dr. [R] uses this very term “unwise decision” at para. 4.86 of his report where he states the following: -

“The principal clinical areas to consider as factors that impact on Mr. [Q]’s capacity, as a product of Autistic Spectrum Disorder, include theory of mind deficits, lack of central coherence, literal mindedness, dichotomous thinking and executive dysfunction. Difficulties in all these areas are evident in Mr. [Q]’s case. Whilst these are not, in and of themselves, a reason to state that an autistic person lacks capacity, it is in the nature of the ‘unwise

decision,’ the lack of awareness to personal vulnerability and the likelihood and consequences of risk to self and others that is most relevant, and untested, in Mr. [Q]’s case.” (emphasis added)

Comments

34. I pause to make a number of comments. Before doing so, I want to emphasise two things. First, these comments are not intended to be a general analysis. Rather, I am making them in the context of trying to assess the medical evidence before me in this very specific and complex case. Second, this Court is not for a moment purporting to offer its own evidence.

General population

35. With those ‘health warnings’ in mind, it seems to me uncontroversial to say that the same dynamic to which Dr [R] refers could be said to be ‘at play’ within the population generally, i.e. the making of unwise decisions involving the lack of awareness to personal vulnerability and the likely consequences of risk to self and others.

36. Take, for example, the theoretical scenario of a 24-year-old who has heard all the public health advice about not taking drugs, but who decides at a concert or event that they will do so and ends up seriously ill in hospital, or worse; or the example of an employee who has had all of the safety advice and training but decides not to wear a ‘hard hat’ and suffers an acquired brain injury; or the driver who knows the rules of the road but decides to accelerate through the red light, hitting the pedestrian, or the other car, and injuring himself and others.

Lack of awareness

37. In other words, I don't think it's unfair for me to take some notice of the fact that the courts, on the personal injury ‘side’ deal, daily, with the consequences of harm resulting from unwise decisions. Without purporting to have any clinical expertise, but agreeing with the analysis of an unwise decision as proffered by Dr. [R] (which self-evidently involves the lack of awareness to personal vulnerability and the lack of awareness to the likelihood of consequences, be that of risk to self or others) it seems to me that that is something which could be said of the wider population i.e. of people who have never had contact with Wardship.

Bar for capacity

38. My point in giving these illustrations is to warn myself, in this capacity assessment, not to set the ‘bar’ higher for this citizen exiting Wardship than it applies to any other citizen

Mandate of the Court

39. This approach seems to be consistent with the mandate given to this Court by the People in s.8 of the 2015 Act, i.e. that lack of capacity is not proved by having made, making or being about to make unwise decisions.

Presumption of capacity

40. Furthermore, and speaking to another of the guiding principles (i.e. the presumption of capacity) I remind myself that in his report, in para. 4.6 which I have quoted, Dr. [R] very appropriately acknowledges that the position is untested as regards the concerns.

41. The 2015 Act does not define an unwise decision, but speaking directly to the evidence before me, it seems to me that the term ‘unwise decision’, viewed objectively, surely captures a

decision which places the relevant person at a disadvantage compared to an alternative choice available to them. For example, regarding the refusal of recommended treatment or support, an unwise decision would also seem to capture a decision which, viewed objectively, gives rise to more risk for the decision-maker, or for others, compared to the alternative choice, an example being to refuse recommended medication.

Untested scenario

42. Insofar as the respondent signals an intention to decline recommended treatment; recommended support; or recommended medication, although it may be unwise objectively, it does not, of itself, mean that decision-making capacity is lacking on my reading of s.8. The 2015 Act, seems to me, not aimed at preventing persons with capacity from making unwise decisions [and the latter is not proof that the former is absent]. I think this Court needs to be very careful, especially in an untested scenario, of straying into an analysis which is, in substance, a ‘best interests’ test with a view to trying to prevent, in advance, someone making a decision which, viewed objectively, may result in harm to them compared to an alternative.

Burden of proof

43. Remaining with s.8, and carefully considering all the evidence, I also remind myself that the burden of proof is not on Mr. [Q]. Rather, it must be shown by means of evidence that, on the balance of probabilities, capacity is lacking.

Latest evidence

44. Finally, I want to return to the latest evidence in the form of a report of 24 April 2026 by Dr. [U], consultant clinical and forensic psychologist. He states inter alia: -

“Further to my last update on 18 December 2025, Mr. [Q] continues to attend weekly individual therapy.”

45. He goes on to say there is no evidence of criminogenic drive. He proceeds to say:

“He has expressed that he wants to cease his anti-depressant medication due to unpleasant side effects. He reports that the medication has not helped with regard to alleviating symptoms of his reported low mood. This is not surprising as his reported symptoms are consisted with boredom and lack of stimulation, rather than clinical depression.

46. Later, Dr. [U] states:

“He reports that he would like to cease the medication immediately and not via a graduated withdrawal as medically advised. He has researched the consequences of this and has come to a decision that on balance, the risks of harm associated with an immediate withdrawal are offset by the reduction of side effects, which he believes will occur more quickly with immediate withdrawal of medication.

I support the secession of Wardship as it impedes Mr. [Q]’s deinstitutionalisation and development of independent living skills. There are risks associated with the removal of Wardship. The primary risk is that Mr. [Q] will choose to leave [named facility] and be homeless. However, he is a creature of habit and has been reticent to make full use of his free time. His behaviour has been largely risk-averse, with the occasional use of sex workers, more for conversation than sexual purposes. It is likely that the benefits and comforts of [named facility] outweigh the alternative of homelessness, and Mr. [Q] is likely to remain in [named facility], be compliant with staff and co-operate with therapeutic direction.

While Mr. [Q] has had ample opportunity to engage in harmful behaviour towards others, he has never done so. Consequentially, his risk of doing so should be regarded as low. I have not completed a formal risk assessment using validated instruments, as there are very few identifying risk factors and the results will be low. Specific risk instruments for use with people with autism spectrum disorder have not been sufficiently validated, and their applicability for someone with high-functioning autism, and few intrusive symptoms, such as Mr. [Q] could only be viewed as indicative of concerns rather than risk. The best predictor of future behaviour being past behaviour. Leaving Wardship and developing independent living skills will be challenging for Mr. [Q], and I would be pleased to provide support to Mr.

[Q] and the staff team, should he be discharged from Wardship.”

Conclusion

47. To conclude this ruling, I am satisfied, having very carefully considered the entirety of the evidence, that the presumption of capacity is not displaced, and that the evidence allows for a finding that the respondent, Mr. [Q], does not lack capacity to make decisions with regard to either his personal welfare or his property and affairs. As I hope is obvious, this is a decision which involved a great deal of careful consideration of the evidence, given that it did not all point one way. It is also, I think, appropriate to say that even if I am in error in that finding as to capacity, in the manner analysed: the primary concern raised on the part of Dr. [R] was that the respondent's condition impacted negatively on his ability to fully appreciate the consequences of decision-making, in particular, risk be that to self or others. That being so, the evidence concerning risk seems to me to be highly relevant, and I think it's fair to say that the risk, in overall terms, is assessed as low, in particular, risk to others. That, to my mind, is relevant to a proportionality analysis because even if I am wrong on the discrete question of capacity, I take the view, for the reasons given, that it would be disproportionate to make the intervention when one considers, carefully, the evidence of risk assessed as low. An intervention includes, of course, the appointment of either a co-decision-maker or decision-making representative.

48. As to risk to self, in the manner I touched on, Dr. [R]’s view is that unfortunately those suffering from ASD are at a higher risk of self-harm than others in the population, but it cannot be the intention of the Oireachtas that this Court, in analysing capacity, would effectively make a

decision which could lead to the deprivation of liberty of the respondent, merely by virtue of that higher risk being a feature of his condition.

49. For these reasons, the appropriate outcome is to make an order discharging Mr. [Q] from Wardship, without decision-making support and in accordance with his expressed wish. He is now the ‘captain’ of his own ‘ship’. He, like the rest of the population, can make decisions for himself. I am very grateful to all those who provide day-to-day support and who offer care and assistance to Mr. [Q], including Dr. [U]. It is for Mr. [Q] to choose to accept that support. The hope must be that like many of us do, the respondent will take due account of the views of others, offered in good faith and out of concern, and make choices accordingly.