It took 6 years for the Mental Capacity Act 2005 in England & Wales to be considered by the Supreme Court; 7 years for the Mental Capacity Act (Northern Ireland) 2016 to be considered by the same court; and 25 years for the Adults with Incapacity (Scotland) Act 2000 to be considered by Supreme Court (in each case the date being from the date of commencement of all of or part of the relevant Act). It has taken the Irish Supreme Court only 3 years to consider the Assisted Decision Making (Capacity) Act 2015. In In the Matter of CNB [2026] IESC 46, some of the key components of the Irish legislation came under the judicial microscope of Hyland J, with a concurring judgment by Hogan J. Just as it has been of lasting importance in the Anglo-Welsh context that the first Supreme Court judgment concerning the MCA 2005 was given by a judge entirely steeped in the legislation (in that case, Lady Hale), it is likely to be of lasting importance that the first Supreme Court judgment concerning the 2015 Act in Ireland was given by a judge equally steeped in the Act, Hyland J having (as a High Court judge) been intimately involved in the translation of the Act from the statute books to the courts.
The appeal in the case concerned the discharge of a young woman, whom Hyland J described by using a pseudonym, Ava, rather than the initials allocated her, from wardship wardship and appointing a decision-making representative (‘DMR’) to act for her from a panel established under the 2015 Act. This was contrary to the wishes of her half-sister, who wished to be appointed as a DMR for personal welfare decisions. Ava’s half-sister appealed on two grounds, described thus by Hyland J:
2. The first is that there was a lack of independent representation for Ava during the discharge from wardship application, contrary to the Act. The General Solicitor for Minors and Wards of Court (the “General Solicitor”) was Ava’s committee in wardship. She instructed a solicitor (“Mr. A”) to bring the application based on a legal aid certificate issued in Ava’s name. Mr. A took instructions exclusively from Ava’s committee, including in respect of the identity of the DMR, despite some evidence that Ava’s will and preference differed from the instructions given by the General Solicitor as committee. The core question on this ground is whether a solicitor appointed under a legal aid certificate issued to a ward may act solely on the instructions of the ward’s committee or whether the Act requires the solicitor to ascertain independently and place before the Court the ward’s will and preferences and other matters relevant to the Court’s statutory duties.
3. The second ground of appeal is that the Order made by the trial judge when appointing the DMR was overly broad, as decision-making powers were conferred on the DMR in respect of personal welfare decisions and property decisions without any identification of individual decisions within those broad categories, or consideration of whether different DMR’s might be appointed depending on the nature of the decision in question. It is also argued that the capacity review carried out by the trial judge failed to differentiate sufficiently between the types of decisions requiring to be made.
The judgment is long and detailed, not least because Hyland J was using it as an opportunity to set out both the complexities of what (for all its many merits) is not a straightforward piece of legislation to navigate, and to set straight what clearly appeared to have been some misunderstandings on the ground about its application. However, very helpfully, she set out a summary of her conclusions at the end, which I reproduce in full below:
171. This appeal concerns the discharge of Ava, a ward of court, from the wardship system (soon to be phased out) and her transition to assisted decision making under the Assisted Decision Making (Capacity) Act 2015. The discharge process is created by the Act but is layered upon the existing wardship system. Accordingly, the process has elements of both the wardship regime and the regime created by the Act.
172. For the purposes of her discharge from wardship, Ava has a legal aid certificate in her name that entitles her to legal representation. That representation must be provided through her committee because wards of court are treated as lacking capacity in all areas, including the capacity to litigate. The committee appointed to manage their affairs acts on their behalf in any litigation. The ward and the committee are not separate parties to the litigation, and the committee does not have its own interests separate to those of the ward. Accordingly, separate legal representation is not appropriate.
173. Moreover, separate representation is not possible because Ava, as a ward, does not have the capacity to instruct a solicitor independently of the committee.
174. But separate representation is not necessary to ensure that Ava benefits from the principles in the Act. The committee is obliged to act in the interests of Ava. Those interests require that her committee instruct the solicitor to represent Ava in such a way as to ensure that the court can apply the principles in the Act. The solicitor has the usual professional obligation to advise the committee on the law in this regard.
175. The principles established by the Act require, amongst other things, that a court must minimise intervention in the person’s life, acknowledge the impact of intervention on the person’s rights, promote the participation of the person, give effect, so far as practicable, to the past and present will and preferences of the relevant person and have regard to the desirability of preserving existing relationships within the family. The committee must ensure that the court has all necessary information before it to apply these principles. In particular, insofar as possible, the committee must ensure that the will and preferences of Ava are ascertained and put before the court, and that she is encouraged to participate in the discharge application.
176. There may be a difference of opinion between the ward and the committee as to decisions the court should take, including in respect of the appointment of a decision-making representative (DMR). That does not normally necessitate separate representation. Rather, the committee must instruct the solicitor to gather evidence relevant to both positions and present it to the court. The committee’s view should not be given additional weight by the court simply because it emanates from the committee. In exceptional cases where necessary to ensure adequate representation of the ward, the wardship judge can direct that the solicitor retained by the committee cease receiving instructions from the committee: but the situations in which this will be necessary will be few and far between.
177. In this case, the committee failed to instruct the solicitor to explore the interest expressed by her father and stepsister in being her DMR, did not ensure the solicitor gave adequate weight to Ava’s will and preferences and incorrectly advocated for a DMR from the DSS panel without sufficiently considering the preservation of family relationships.
178. Moreover, the solicitor mistakenly applied the test for assessing capacity when seeking to ascertain Ava’s will and preferences. The Act makes it clear that capacity is quite separate from will and preference.
179. The trial judge also failed to reflect the statutory context. He did not refer to Ava’s will and preferences when appointing the DMR or the desirability of preserving family relationships, did not inquire as to the position of Ava’s father, did not refer to the fact that a panel DMR should be appointed only in the absence of any other suitable person and did not consider the possibility of appointing different DMRs for different decisions. He wrongly referred to the best interests of Ava, a test that has been displaced by the 2015 Act.
180. In summary, the deficiencies identified in this case arose from a failure properly to implement the statutory obligations imposed by the Act, not from any inherent defect in the representational model itself.
As regards the second ground of appeal:
181. The second ground of appeal concerns a challenge to the range of decisions that the DMR is entitled to make on behalf of Ava. The appellant argues the Order by the Court was over broad in that it was not confined to specific decisions requiring to be made, instead appointing a DMR in respect of all personal welfare and property decisions.
182. A functional capacity report was provided by a psychiatrist. He concluded that in respect of capacity in terms of health decisions (care and treatment), Ava did not satisfy all four aspects of the capacity test under s.3 of the 2015 Act and arrived at a similar conclusion for personal welfare decisions and property and financial decisions.
183. The statutory provisions, including s.3 and s.8, require a “least intervention” approach in conferring decision-making powers on a DMR. That means a DMR should only be appointed to make decisions in areas where the person lacks capacity to make those decisions. The legislative provisions that envisage more than one DMR being appointed to a relevant person in respect of different decisions support this approach. Those provisions envisage a close examination of potential decisions and the person’s capacity to make same, as opposed to a blanket approach to decision-making.
184. Accordingly, when a medical practitioner is carrying out a functional capacity analysis, they should consider not just the broad categories of personal welfare and property but also individual decisions or classes of decisions within those categories likely to be relevant to the person concerned. Consideration should be given for the potential of “pools of capacity” within larger pools of incapacity, i.e. where a person has capacity to manage small amounts of money but not larger amounts.
185. The court should take a similar approach. The court’s approach should be informed by the principle of “least intervention”. A knowledge of the relevant person, their living situation, their day-to-day activities and their medical history is necessary to allow the medical practitioner – and the court – to do so.
186. When considering capacity, a court should do so by reference to the decisions that require to be made now or in the future. A DMR may be appointed over decisions that will require to be made in the future, even if they are not required imminently. However, it is not possible to anticipate every decision that will be required. When conferring decision-making powers on a DMR in the Order, a court should be mindful of the danger of being either under- or over-inclusive.
187. However, it is important to stress that in an appropriate case, a court may conclude that the person lacks capacity in all aspects of personal welfare and property and affairs, provided the court has considered the range of potential decisions required to be made by the person concerned. The judgment and/or Order should make it clear that consideration has been given to the sub-categories within the two main categories in the Act – decisions on personal welfare and on property and affairs matters.
188. Here, the appellant adduced no medical evidence in support of her assertion that there was a deficit in the reasoning or analysis by the medical practitioner, or the decision by the court to follow the conclusions of the medical practitioner. Nor has she explained why she claims the Order is too widely drawn, and what areas of decision-making ought to have been excluded, given Ava’s capacity or situation. Accordingly, the appellant fails in her second ground of appeal.
189. In those circumstances, I would set aside the decision under appeal and remit the matter back to the High Court for a fresh decision.
Hogan J gave a concurring judgment emphasising the importance, within both the legislation and the Irish Constitutional framework within which it sits, of the role of families in the lives of those falling within the scope of the 2015 Act, but noting that:
17. In any event, the paramount considerations remain the constitutional rights and values of personal autonomy (i.e., the rights derived from Article 40.3.2⁰), dignity and, above all, the wishes of the relevant person. It is an approach which seeks to involve, where appropriate and suitable, family members in the decision-making process. This objective reflects not only the statutory language contained in s. 38(5) of the 2015 Act. but also ensures that the underlying constitutional precepts – reflected in the protection of the “person” in Article 40.3.2⁰ – and human dignity, along with the recognition for this purpose of the family as a moral institution are all properly upheld.
Comment
No doubt much commentary will be forthcoming from those in Ireland in relation to the case. The comments below are avowedly, with due apologies, made from an Anglo-Welsh perspective (albeit from one with a deep interest in the 2015 legislation). From this perspective, three points in the judgment were of particular interest.
The first is Hyland J’s emphatic rejection of the conflation of capacity and will and preferences, set out at more detail at paragraphs 98-100 in more detail thus:
98. It is vital to distinguish between capacity on the one hand and will and preference on the other. The Act makes it clear they are quite separate. Wards lack capacity: yet effect must be given to will and preferences where practicable.
99. Not only is there a logical distinction between capacity, and will and preferences, but it can be said that making that distinction and giving effect to it by the way the court proceeds is one of the key policies of the Act.
100. Nor do will and preferences necessarily need to be consistently expressed, or based on objectively justified factors, to be given effect. People, including people lacking capacity, have preferences for all sorts of reasons, some rational and others not. People, including people lacking capacity, fluctuate in their preferences. A court is of course entitled to consider the fluctuating nature of a preference as a relevant factor; but that fact alone should not inevitably be treated as evidence that a person cannot express a will and preferences. Here there was evidence of fluctuation on Ava’s part; but there was also evidence of a clearly expressed preference for her father, as the above evidence demonstrates.
Hyland J was not, of course, applying AGNI, a judgment from a different jurisdiction, but it is interesting in light of the debates around that judgment’s disentangling (for one specific purpose) of mental capacity and the ability to express ‘actionable’ wishes and feelings to see another Supreme Court being quite so emphatic that a mere lack of (mental) capacity does not automatically mean that a person is incapable of expressing will and preferences.[1]
The second is the approach taken to decision-making capacity in relation to the scope of appointment of DMR. In line with the obligations imposed by the CRPD (even if not with the obligations of the CRPD as interpreted by the Committee on the Rights of Persons with Disabilities) Hyland J made clear that the Irish legislation provides for the possibility that a person may not be able to make any relevant decision (whether relating to personal welfare or property and affairs), but that such a conclusion can only be reached with appropriate care.
The third, again, relates to the approach taken to decision-making capacity. The Irish legislation does not (by contrast to the position in England & Wales) include a so-called ‘diagnostic’ element to capacity: in other words, the sole question in Ireland is whether the person can functionally understand, retain, use and weigh the relevant information, and communicate their decision. On the face of it, this would appear to suggest that such a functional assessment could be carried out by any person with the appropriate knowledge of the legislation and skills to engage with the individual under assessment. However, and as has been the case in New Zealand, where the equivalent legislation equally does not have any express ‘diagnostic’ element, capacity is being colonised by medicine. As is standard practice in that jurisdiction, the capacity evidence in Ava’s case was provided by a medical practitioner (a psychiatrist). The appellant, in turn, failed in significant part in her challenge to the approach to the appointment of the DMR by the High Court because she did not adduce medical evidence to rebut that report. It is, perhaps, a strange irony that in England & Wales, sometimes lambasted for having a discriminatory approach to mental capacity because it is linked to a requirement to show that the relevant functional inability is caused by an impairment of or disturbance in the mind or brain, the Court of Protection has become increasingly confident in accepting capacity evidence from those other than medical professionals, both at ‘entry’ (in the COP3 form) and indeed, even, in the context of the resolution of a contest as to capacity.[2] At a minimum, therefore, the case reinforces how much turns in the implementation of legislation on the cultures within which the legislation is deployed.
[1] Before I get emails I am very aware that, as Hyland J herself made clear, the Irish legislation does not grant determinative weight under all circumstances to will and preferences. It is the principle that is of interest.
[2] And, indeed, increasingly also questioning (on the facts of a particular case) it would be justifiable to attribute causative effect to an identified impairment.
