About this case:

• Citation:
  [2022] IEHC 518
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment in the case, Ms Justice Niamh Hyland applied the test for capacity contained in the Assisted Decision Making (Capacity) Act 2015 as there was no explicit test for capacity in the Lunacy Regulation (Ireland) Act 1871. While it was held that unwise decisions do not connote a lack of capacity, the conduct of the ward in this case was indicative of a lack of capacity.

Background

The respondent was a 19-year-old man known as JD. He had suffered from mental illness since 2011 and was later diagnosed with bipolar affective disorder. He spent time in foster care as a child. He was also involuntarily detained in Merlin Park Hospital under the CAHMS system and was given residential placement in County Westmeath with a healthcare service. The Westmeath facility was run by a private provider who terminated JD’s residence in May 2022.

In November 2021, the HSE brought an ex parte application seeking an inquiry to take JD into wardship under the 1871 Act. A guardian ad litem was appointed for JD by the High Court and detention and treatment orders were granted. The detention orders were continued from time to time until the full hearing in August 2022.

JD had a clearly articulated position that he wished to return to X, where his family and friends lived, and that he did not want to be in residential placement. However, he had a history of violence against his family and was deemed unsuitable to return home by Tusla. JD was aware that he was required to maintain good behaviour if he wished to return to X.

Further, JD did not consistently take his medication to treat his bipolar disorder and this resulted in him being physically and sexually aggressive towards staff members in his residential placement.

There was diverging medical evidence on whether JD retained sufficient capacity to avoid being taken into the wardship system. There were several reports from five consultant psychiatrists on capacity, with some of the doctors applying the test for capacity contained in the 2015 Act.

Essentially, the difference in medical opinion centred on JD’s decision making regarding his medication, how he conducted himself in his residential placement and how he approached issues relating to his future.

Some of the doctors assessed JD as having a limited understanding of the world around him and he did not have an evident thought process as to how he would achieve his goals. This was important because JD had a clear view that he wished to return to X, but it was also made clear to him that he had to improve his condition by taking his medication for this to occur.

In particular, the doctors in favour of wardship outlined that JD’s words did not accord with his actions and this demonstrated a lack of insight for his position. Further, one doctor noted that JD distanced himself from agency of his own actions and tended to blame others for his inappropriate behaviour.

In contrast, an eminent doctor opined that JD had sufficient capacity, stating that his behavioural issues were attributable to JD’s unhappiness with his residential placement rather than to his mental illness. He could make decisions for himself and was able to clearly identify his goals. It was therefore not possible to say that JD could not manage his own affairs, the expert said.

High Court

Ms Justice Hyland began her assessment by commenting on the proper approach to determining capacity. She outlined the four-part test for capacity which was contained in section 3(2) of the 2015 Act, noting that three of the medical experts had employed this test to determine JD’s capacity.

It was held that “unwise decisions do not connote a lack of capacity”, and that an informed decision not to take medication did not indicate that a person lacked capacity. However, Ms Justice Hyland also stated that a court should look at a person’s conduct when making decisions and not just to their identified wishes to assess capacity.

In this case, JD’s words and actions were “distinctly at odds”. The court said that, despite JD being aware that he was likely to relapse into a psychotic state if he did not take his medication and any relapse would militate against his wish to return to X, he had frequently been non-compliant with the medication regime. Further, he continued to engage in violent and sexually inappropriate behaviour despite being aware that this prohibited him from living in X.

It was held that JD’s behaviour over a 20-month period was “so consistently at odds with his fervently expressed goal of returning to [X] that it is indicative of a lack of capacity, either 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”.

It was stated that a proportionate approach had to be taken to capacity and if a refusal to take medication consisted of individual incidents, then it would not be correct to determine that JD lacked capacity. However, the pattern of behaviour was very consistent and tended to show that JD did not understand the importance of taking his medication.

Even if JD understood the information relating to taking medication, the court held that he would not satisfy the test for capacity because he could not use or weigh the relevant information. Again, his overwhelming desire to live in X was entirely undercut by not complying with his medication regime. As such, the court held that JD lacked capacity on decisions concerning his mental health.

Further, it was held that JD did not have capacity in relation to decision on his place of residence or his behaviour. Again, the evidence showed that JD did not understand the information relevant to these decisions or could not use the information correctly. The persistent aggressive behaviour was undermining his wish to live in X and as such he failed the test for capacity, the court held.

Finally, in respect of decisions on his daily living, JD had refused to complete training on independent living and required two-on-one care in his residential placement. JD also had extremely low scores in psychological assessments relating to working memory and processing speed, and he also had difficulties with language skills.

Conclusion

The court held that it retained a discretion to admit JD to wardship and decided that wardship was in JD’s best interests. It was noted that JD would likely end up in the criminal justice system without requisite safeguards for his continued placement. The wardship system provided these safeguards.

JD was still a young man and his capacity was not in a fixed state. As such, his capacity would be reviewed within two years.

In the matter of JD [2022] IEHC 518