On 1 February 2024, the High Court ruled that on interpretation of Section 108 of the Assisted Decision-Making (Capacity) Act 2015, reviews are required to be carried out on detention orders made for wards of court, whether or not they have a “mental disorder” and/or a consultant psychiatrist responsible for their care. Section 108 concerns persons detained in institutions that are non-approved centres immediately before, and continuing on from the commencement of the section, and these reviews must be carried out as soon as possible. This arose in the context that after 26 April 2023, applications were no longer accepted to be deemed a ward of court, and those already prescribed as such are to undergo an assessment of their decision-making capacity.
This ruling follows on from scope and clarity issues in relation to the new legislation, when concerned with individuals that were, and continue to be, wards of the court, as per Barniville J:
‘The Act has given rise to a number of difficult legal issues concerning the detention of persons who were wards of court at the time the Act came into force as well as those who are not wards of court but whose decision-making capacity was, and continues to be, in question.’
The individual whom this case concerns is a woman over 60 years old, who previously suffered a traumatic brain injury in 1981, and a stroke in 2014, contributing to her diagnosis of severe dementia. Whilst spending over two years in hospital after a fall, a detention order was made in August 2021. Subsequently, in December 2021, the individual was admitted to wardship, and these orders have been reviewed and continued in 2022, under the courts wardship jurisdiction. Further reviews occurred in 2023, leading to the s.108 review in the current proceedings.
The High Court found that the wording used in s.108(1) is clear in its own terms, when considered alongside the context of the Act itself, and that if there was a requirement for the ward to have a ‘mental disorder’ or a responsible consultant psychiatrist, the section would have expressly provided for this. Barniville J noted that it is satisfactory for there to be evidence given by a court-selected independent consultant psychiatrist, as per s.108(5), and further evidence of a different medical practitioner, who has reviewed the ward, holding that to only allow reviews by the court where there is a responsible consultant psychiatrist ‘would be a classic case of the tail wagging the dog.’
Thus, the court carried out a review under the act, and in the circumstances, there was no order made under s.108, and the court exercised its wardship jurisdiction to allow for the existing orders to continue, requiring for a further review to be carried out within three months. Nonetheless, this decision made an important finding on the scope of s.108, and when reviews can be carried out for a ward of court.
Click here for the judgement in Health Service Executive v M.C. (A Ward of Court Represented by her Committee, S.C. and B.C.)
Click here for PILA article on the commencement of the Assisted Decision-Making (Capacity) Act 2015