Mr Justice O’Connor delivered a judgment in the Circuit Court on 12 February 2025 on a capacity application made by the Relevant Person’s Solicitor (the “RP’s solicitor”). The application sought a declaration that the Relevant Person (“RP”) lacked the capacity to make decisions regarding his property and affairs. The RP’s solicitor requested the appointment of a Decision-Making Representative (“DMR”), citing concerns that the RP did not understand the seriousness and potential consequences of refusing to engage with his legal and medical advisors in relation to litigation he had initiated.
In 2023, the RP had instructed his solicitor to issue proceedings concerning his late father’s estate. However, before a settlement was reached, he ceased communication with his legal representatives. It was later revealed that the RP had been hospitalised due to bipolar disorder, initially as an involuntary patient. At the time of the capacity application, he remained in the hospital as a voluntary patient. A hearing date for the estate proceedings had been set for late 2024.
Despite numerous attempts, the RP’s solicitor was unable to re-establish communication with him. The solicitor sought assistance from the RP’s social worker and requested a medical report from his psychiatrist, but the RP refused to engage with his social worker, psychiatrist, medical advisors, or hospital staff, preventing a formal capacity assessment from being conducted. This raised the question of whether the RP had litigation capacity. Counsel for the RP advised the solicitor to bring an application for the appointment of a DMR to safeguard the RP’s interests in the ongoing legal proceedings. The RP was formally informed of this application but did not respond.
At the hearing, several specialists provided oral evidence supporting the position that the RP lacked the capacity to engage in legal proceedings. The Court considered the definition of litigation capacity under the Assisted Decision-Making (Capacity) Act 2015 (the “Act”), particularly the principles outlined in Section 8. Under the Act, an individual is presumed to have capacity unless proven otherwise, with the burden of proof resting on those asserting incapacity. The assessment of litigation capacity typically requires expert evidence from medical professionals and those involved in the individual’s care. Factors considered include the individual’s understanding of the proceedings, their ability to communicate, and their ability to formulate, evaluate, and articulate questions, replies, and decisions.
Section 139 of the Act provides that a case should be heard in the presence of the Relevant Person unless their absence would not cause injustice. In this case, the Court determined that the RP’s interests were adequately represented by an independent specialist solicitor.
The Court concluded that the RP did not sufficiently understand the nature, purpose, and effect of the proceedings or the consequences of his failure to engage. Accordingly, it found that the RP lacked the capacity to make decisions regarding the litigation he had initiated. Given the principle of minimum intervention under the Act, the Court appointed a DMR for an initial period of six months, subject to review at the end of that period.
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