The Assisted-Decision Making (Capacity) Act - Two Years On

2 years on from its commencement on 26 April 2023, we take a look at the Assisted-Decision Making (Capacity) Act 2015 (‘the 2015 Act’).  As you know, the 2015 Act provided for a new legal framework for supported decision making in Ireland, to deal with situations where a person may have difficulties making certain types of decision.

Cases

Appointment of Decision-Making Representatives (‘DMRs’)

The case of Joan Doe v HSE & John Doe [2023] IECC 10  related to a dispute between the HSE and the siblings of Joan Doe, a woman with ‘significant cognitive impairment’. The siblings contended that they were best placed to be appointed her DMRs, but the HSE had concerns about the transparency of the woman’s assets and its view that she required nursing home care. The Court noted that one brother had been managing aspects of the woman’s financial affairs over some nine years and had lived rent free in her home for some two years; another brother was getting €25 weekly payments from her; some money contributed to a holiday for a sister and a nephew; and the family would inherit from her estate on her death. The Court was concerned that there was ‘a lack of transparency and accountability’ in the presentation of the woman’s assets, and ‘regrettably too many issues outlined to the Court that give rise to a serious conflict of interest for the Doe family unit’.

In relation to medical care decisions, it was stated that:-

With regard to medical care decisions, the sad fact is that members of the family instead of acting as advocates, which would have been admirable, have effectively overreached. They put themselves into a position without expert knowledge acting as the Relevant Person’s decision-makers for medical decisions. This would make it impossible for medical professionals to objectively treat the Relevant Person. Their subjective views are not backed up by any objective analysis.

Ultimately, the HSE secured court orders which mean that two independent persons, rather than the family members, will make decisions about management of the woman’s medical treatment, her substantial assets and her long-term care and accommodation needs. The judge directed the appointment of two DMRs, one to make decisions concerning the woman’s medical treatment and long-term care/accommodation, and the second to make decisions about her financial affairs.

Will and Preference of the Relevant Person (‘RP’)

In The Matter of AB [2024] IECC 16 the Court refused an application made by the DMRs to transfer the RP’s family home into the joint names of the RP and his wife. RP’s Will bequeathed the property to his spouse on his death. The applicants sought the transfer as, on AB’s death, the property would then pass automatically to his spouse without the need to take out a grant of probate. The applicants submitted that AB’s past will and preference was to transfer the property, but that he had never managed to effect same prior to a declaration that he lacked capacity. The property transfer was to be a ‘gift’ as AB would receive no financial consideration.

In refusing the application the Court stated that (paragraphs 7.2 to 7.5):-

Exceptional circumstances would be required in order for the Court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that a RP has an obligation to maintain and provide for. It is also important for a Court not to frustrate any ‘future intention’ RP may have with regard to the disposal of his/her property/assets. 
…

It is to be presumed unless contrary evidence is provided to the Court that the RP in this case intended to make a Will and not create a deed of transfer.
…

The Court upholds the right of the person who lacks capacity to still retain control as far as possible over their property and affairs. 

Advance Healthcare Directive (‘AHD’)

In a previous Medico-Legal Update (19/10/2023)  we looked at the ability to make an AHD under the 2015 Act. To recap, the term ‘advance healthcare directive’ as defined in section 82 of the 2015 Act ‘in relation to a person who has capacity, means an advance expression made by the person, in accordance with section 84, of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity’. This aspect of the 2015 Act was considered for the first time by the High Court in June 2023 in a case relating to a prisoner who was refusing food and fluids (Governor of A Prison v X.Y. [2023] IEHC 361 (22 June 2023)). The stated intention of the prisoner was to end his or her life.

On 13 May 2023 the prisoner had executed an AHD whereby he or she was not to receive any medical intervention or medication, and, if actively dying, had a preference to do so in a clinical setting, such as a hospital or hospice. The prisoner had directed that those wishes were to be respected should they become incapacitated or unconscious; and that the AHD was to apply even if the prisoner’s life was at risk. The governor of the prison applied to the High Court seeking orders in respect of the prisoner’s wishes. It was established that the prisoner had full capacity at the time of making the AHD and at the time of the hearing.

Following consideration of the matter, the Court declared that pursuant to section 89(2) of the 2015 Act the prisoner’s AHD was valid. It was lawful not to force-feed the prisoner, and that while the AHD did not apply while the prisoner had capacity, the governor was entitled to give effect to the AHD in the event that the prisoner lost capacity or became unconscious or incapacitated.

Wards of Court

The 2015 Act provides for a system whereby all existing adult wards will be discharged from wardship. This will be done by the Court that took them into wardship, which in most cases will be the High Court. The application for discharge can be made by the ward themselves, or by their Committee (in many cases a family member), or by certain persons, with the leave of the Court. If no application is made for discharge by any of these parties, then the Court may review the ward’s case and make the discharge on its own motion.

The ward’s capacity to make different decisions will be assessed by the Court’s Medical Visitor in accordance with requirements under the 2015 Act. The Court may decide that some wards can be discharged from wardship without requiring any support in decision making. Any ward assessed as requiring continued support in decision making will have new decision making support arrangements put in place under one of the three tiers under the 2015 Act.

Despite a statutory deadline of 26 April 2026, fewer than one quarter of wards’ representatives have applied for them to exit wardship, according to Courts Service figures. Just 468 applications to discharge wards of court were made last year, leaving 1,469 wards for whom no discharge request has as yet been made. 

Challenge Medico-Legal Updates
by Josephine Breen, Solicitor/Medico-Legal Advisor

Josephine has extensive experience in the area of medical negligence defence litigation and health law generally. She has managed and resolved a wide range of healthcare related claims and complaints on behalf of individual healthcare practitioners and healthcare organisations. She has advised on many and varied healthcare-related issues including capacity to consent to medical treatment; confidentiality and disclosure of personal information; public health issues and mental health issues. She has also attended at Coroners Court and Medical Council hearings.

Josephine has been admitted as solicitor in two jurisdictions, having been admitted as a solicitor in the Republic of Ireland in 1998 and as a lawyer in the Supreme Court of Western Australia in 2013.

In Western Australia Josephine worked as a Medico-Legal Case Manager (Solicitor) with MDA National, a leading Australia-wide Medical Defence Organisation. Before that Josephine was a Solicitor with the Department of Health (Western Australia) in their Legal & Legislative Services Unit.

In Ireland, Josephine worked for eight years as a Solicitor/Clinical Claims Manager in the specialist clinical litigation section of the State Claims Agency (Clinical Indemnity Scheme). Prior to that Josephine was a Solicitor and Medico-Legal Advisor with St. Paul Ireland Insurance which insured approximately 4,000 non-consultant hospital doctors.