Ciara Dowd BL

Background

The case concerned a wardship inquiry in relation to a 19-year-old man, JD, who has bipolar affective disorder and has experienced significant familial disruption.

Hyland J. noted a key distinction between the wardship regime and the forthcoming Assisted Decision-Making (Capacity) Act 2015: there is no explicit test for evaluating capacity under the Lunacy Regulation (Ireland) Act 1871. Rather, the High Court is charged with deciding whether a person is of unsound mind and incapable of managing their person or property. Under section 3(2) of the 2015 Act, however, there is a specific four-part test for assessing functional capacity. The court noted that medical practitioners have already been applying section 3(2) for assessing capacity under the wardship regime.

Nevertheless, the 2015 Act recognises that a person may have capacity in some areas but not others. In that regard, it will require that an identification of the specific areas where a person’s capacity requires to be assessed, and for interventions to be limited to those areas. The Act specifically provides that a lack of capacity in one area does not prevent that person having capacity in other areas.

The Court went on to note that the current wardship regime, however, tends “tends towards a more global assessment of capacity…”.

Hyland J. continued on to make a number of important comments about capacity assessments that are relevant to both the wardship regime and the 2015 Act regime.

Capacity assessments

First, she stated “[u]nwise decisions do not connote a lack of capacity”. While a decision not to take medication “made with an understanding of the consequences of same, and a decision to live with those consequences” does not indicate that a person lacks capacity, even if that decision will have negative consequences.

The Court continued on to consider that, on the facts of the case, JD’s actions were indicative of a lack of capacity, where said actions were so incongruous with his words and expressed goals. This was because “he cannot understand the information in relation to the consequences of his actions, or because, if he can understand it, he cannot use or weigh appropriately… The lack of appropriate use or weighing of information may be discernible either through a person’s words or their conduct. In this case, JD can appropriately reflect the information in discussion at times, but cannot reflect that belief in his actions.”

Second, she noted that a “proportionate approach is necessary when analysing capacity”. If unwise behaviour consisted of isolated incidents, it would be disproportionate to conclude it as evidence of a lack of capacity.

Third, “[w]hen assessing capacity, the person must be placed in an appropriate context”. The Court noted that JD is a young man, and his approach to decisions must be evaluated from that perspective.

These are important precautions and, if applied correctly, should assist medical practitioners and judges in avoiding a potential discriminatory application of the functional test of capacity.

The Court continued to consider the relevant areas where capacity was in issue for JD: how JD approaches his enduring mental illness; how JD conducts himself; and how JD approaches the question of his future, including where he would like to live. Ultimately, it found that JD lacked capacity on those issues and that he should be taken into wardship.

Comment

The case starkly highlights the change forthcoming in the 2015 Act: where a person will be found to lack capacity or require assistance in exercising capacity in a specific area, an intervention under the 2015 Act will only be made in respect of that issue.

By contrast, under the Lunacy Regulation (Ireland) Act 1871, a person may be brought into wardship and lose all legal capacity in relation to all matters, if they are found to lack capacity according to a cognitive assessment or on one or more key issues.

• Ciara Dowd is a barrister.