by Niamh O’Herlihy May-20-2024 in Healthcare Law


The Assisted Decision Making (Capacity) Act, which was commenced on 26 April 2023, has transformed Ireland’s capacity legislation and focuses on supporting adults who may face challenges in making decisions without assistance. The Act moves away from the “best interests” principles towards assisted decisions and the relevant person’s “will and preference”. The Act has now been in force for one year and below is a brief synopsis of recent judgments where the courts have dealt with the provisions of the 2015 Act, to include the factors to be considered when appointing a decision-making representative (DMR), discharge from wardship applications and advanced health care directives.  

  1. Joan Doe v Health Service Executive and John Doe- Circuit Court Rec No: 2023.DUBL.ADMC/0000002

In the above Circuit Court case, the HSE sought a declaration from the court that the relevant person (RP) lacked capacity to make decisions regarding long-term accommodation, medical treatment, and her financial affairs. The Doe family, mainly siblings of the RP, whilst accepting that the RP lacked capacity, argued that they were best placed to be appointed as Decision- Making Representatives (DMRs).

The RP had been diagnosed with dementia by her treating Consultant Psychiatrist. The court stated that the issues of her mental illness did not mean that she was incapable of furnishing her will and preferences. The court heard that the RPs brother managed her financial affairs, although no accounts were furnished to the court, and he was residing in her home, whilst the RP resided full-time in an acute hospital. Additionally, the court heard that the RP was paying her brother €25 per week by way of standing order, and she also contributed towards the cost of a family holiday for him.

The court considered the factors set out in section 38(5) of the Act which states-

When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following:

  1. The known will and preference of the relevant person;
  2. The desirability of preserving existing relationships within the family of the relevant person;
  3. The relationship (if any) between the relevant person and the proposed representative;
  4. The compatibility of the proposed representative and the relevant person;
  5. Whether the proposed representative will be able to perform the functions to be vested in him or her;
  6. Any conflict of interest”.

Having considered the above factors, the court found that the siblings lacked insight into the issues resulting in a conflict of interest. The court also found that there was a lack of transparency and accountability in the presentation of the RP’s assets and that a serious conflict of interest arose. The court favoured the appointment of independent DMRs from a panel in the Decision Support Service (DSS) over the family members to make personal welfare and medical treatment decisions and to make decisions regarding the RP’s property and financial affairs.

  1. In Re A Ward: General Solicitor (L.M): (2024) IEHC 151

Under Part 6 of the Act, all current wards over the age of 18 are undergoing review and shall be discharged from wardship by April 2026. This case involved an application brought under s55 of the Act which provides for declarations following review and discharge from wardship. For the purposes of the application, an assessment carried out by a consultant psychiatrist who found that the respondent, who was admitted to wardship in May 2022, had capacity in relation to her personal welfare decisions. In terms of her property and affairs, the psychiatrist noted that the respondent’s financial management skills had not been tested and he opined that the respondent would benefit from assistance with more complex financial management. The respondent’s social worker also provided a report to the court stating that the respondent “would benefit hugely” from support regarding financial management of her finances.

The court noted that there is a material difference between expressing a view that something would be “of benefit” to someone and a view that the relevant person lacks capacity to make decisions in a particular area where they would benefit from support. It stated that the former seems to be a view expressed through a lens of what might be considered to be a “best interests” assessment, whereas the 2015 Act does not assess matters through such a lens. “Rather, the analysis has to hinge on the question of capacity- the 2015 Act being underpinned by the principle of maximising autonomy in terms of decision-making”. The court heard that the respondent did not want any support with decision-making or any further involvement from social workers or from solicitors.

The court found that despite recommendations for support in financial decision-making, the evidence did not establish that the respondent lacked capacity in that area.  The court made a declaration pursuant to s55(1)(a) of the Act that the respondent did not lack capacity in the areas of personal welfare, and her property and affairs. The respondent was discharged from wardship, pursuant to s55 (2) of the Act, and remitted to the management of her own affairs with her property returned to her.

  1. Governor of a Prison v X.Y (2023) IEHC 361

In this case, the court considered for the first time the provisions of Part 8 of the 2015 Act, which pertains to Advanced Healthcare Directives (AHD). This case concerned a prisoner who refused to consume food or fluids with a view to ending his life. The prisoner executed an Advanced Healthcare Directive (AHD) in May 2023, and he was considered to have capacity at the time of execution. The governor sought various orders and declarations, including a declaration that the AHD executed by the prisoner was valid and applicable and he sought clarity in relation to the administration of treatment and care to the prisoner in the event of his incapacity or unconsciousness. The court considered the provisions of section 8 of the Act and found that the AHD was valid under the Act and held that the prisoner had the capacity to refuse food and fluids. It was held that the AHD was applicable to life-sustaining treatments and the governor’s decision not to force-feed the prisoner or to provide medical intervention against the prisoner’s wishes in the event of incapacity of loss of consciousness of the prisoner was lawful.


One year on from commencement, the recent judgments illustrate a focus from the courts on the importance of functional capacity assessments and prioritising “will and preference”. Whilst the Act is still in its infancy, the recent judgments reflect a positive move towards maximising autonomy in decision making.  

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