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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> N [A Ward of Court], Re (Approved) [2025] IEHC 293 (08 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC293.html
Cite as: [2025] IEHC 293

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THE HIGH COURT

WARDS OF COURT

[2025] IEHC 293

[WOC 10490] 

 

IN THE MATTER OF N, A WARD OF COURT AND IN THE MATTER

OF AN APPLICATION PURSUANT TO SECTION 55 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 (AS AMENDED)

RESPONDENT

Ex tempore ruling of Mr. Justice Mark Heslin delivered on the 8th day of May 2025

Introduction

1.            During this ruling, I will refer to Mr. [N] as the respondent. Although the respondent is not participating in today's hearing, in relation to his discharge from Wardship, this is in circumstances where he has declined to engage with the discharge process, despite encouragement. He has, however, indicated that his wish is to leave Wardship.

 

Wish not to engage

2.            In these circumstances, I am satisfied that no issue arises in light of s.139 of the 2015 Assisted Decision Making Capacity Act (the "2015 Act") and there can be no conceivable injustice arising by proceeding today, respecting the respondent's wish not to engage.

 

Application

3.            This is an application brought under s.55 of the 2015 Act, the respondent being the "relevant person". The role of the Court, having considered the evidence, is to make one or more declarations, followed by appropriate orders.

 

4.            The respondent's Committee has brought the present application, and I am very grateful to Ms. Fiona O'Dwyer, solicitor, who summarises matters so comprehensively in her helpful submissions today.

 

5.            The application is grounded on the affidavit which she swore on 13 March of this year concerning the respondent - a gentleman born in 1990 and admitted to Wardship in 2020 in circumstances which are outlined in Ms. O'Dwyer's "grounding" affidavit.

 

HSE

6.            I am also grateful to Mr. Brady B.L., for the HSE, who is present in court today. This is because his client has been heavily involved in providing care and support to the respondent, and securing a suitable placement, in circumstances where the relevant history includes a breakdown of prior placements.

 

Residence

7.            The respondent currently resides at a certain Unit. I also note the updates provided by Dr. [B], Consultant Psychiatrist, regarding the respondent's current situation, presentation, and care in that Unit, a feature of which is the respondent declining to engage with professionals.

 

8.            I also note, by way of further background, the reports of Dr. [C] and Dr. [D] respectively, both being Consultant Psychiatrists. Both were satisfied that the respondent lacked capacity regarding decisions in relation to his health and his finances.

 

Notice

9.            I note that correspondence was sent to the respondent regarding this application, including, a 'reader friendly leaflet' about leaving Wardship.

 

Social Worker

10.         Correspondence was also sent to Ms. [E], Social Work Team Leader with the HSE Mental Health Services, and Ms.[E] has clearly been a huge support to the respondent, for a considerable period, and deserves particular thanks for the role she continues to play.

 

Medical evidence

11.         Regarding the medical evidence Dr. [F], Consultant Psychiatrist, carried out an assessment of the respondent, on 16 November 2023, and concluded that he lacks capacity even if the assistance of a suitable person as co-decision maker were made available to him. 

 

2nd Opinion 

12.         In circumstances where the respondent did not agree with that assessment and Ms. [E] felt that the respondent might have some decision making capacity in certain areas and felt that a second opinion should be sought, Dr. [G], a second Consultant Psychiatrist assessed the respondent as recently as 13 February of this year.

 

13.         Dr. [G] came to the same conclusion as Dr. [F], namely, that due to the impact of Autism Spectrum Disorder, the respondent "lacks capacity to make decisions in all spheres of his life" and Dr. [G] recommends the appointment of a decision making representative (or "DMR"), under the 2015 Act. The medical evidence is uncontroverted.

 

Ss. 8(7) and (8)

14.         At para. 26 of her affidavit Ms. O'Dwyer avers that, in the present case, it would be appropriate for a DMR to be appointed to make decisions concerning the respondent's Personal Welfare and Property and Affairs, subject to the obligations set out in ss. 8(7) and (8) of the 2015 Act. That averment accords entirely with the uncontested medical evidence before the Court. These sections are important. They require the DMR to encourage and to facilitate input from the respondent insofar as possible and entitle the DMR to consider the views of those caring for, or having a bona fide interest in, the welfare of the respondent, including, healthcare professionals and that is plainly of relevance on the facts in the present case.

 

DMR

15.         In the manner averred by Ms. O'Dwyer, the respondent was invited to identify a family member or friend or other individual whom he wished to perform the role of DMR.  The evidence makes clear that the respondent declined to engage on this issue. That is clear from both affidavits of service sworn by Mr. Stephen Walsh, solicitor, on 14 April and 24 April, respectively. In short, despite every reasonable effort having been made, the respondent chose not to engage with or discuss the present application, including the choice of DMR.

 

16.         I also notice the contents of Ms. [E]'s social work report of 01 May 2025, in which she sets out details regarding the respondent's challenges, history, and presentation and states inter alia that the respondent has declined all engagement with professionals whom he perceives as associated with the process that has him resident in the Unit, whether involved in his psychiatric care or in the court process. Ms. [E] opines that this rigidity is based on the respondent's perception and experience in the context of his autism diagnosis.

 

17.         Ms. [E] goes on to make clear that it is the view and recommendation of the multidisciplinary team of the relevant mental health service: "...that the appointment of a DMR having a background where personal, social and emotional development are areas of expertise and their role is outside of medical and legal backgrounds to support and execute decisions in the future under the DMR process would prove more achievable if the respondent has a greater trust in the person. It is our view that this person is from a social worker, social care, or psychology background and if possible experience of working with neurodiverse persons" (emphasis added).

 

18.         In light of that, it is appropriate to note that the nomination of Ms. [H] from the panel maintained under the 2015 Act has been approved by the President. Ms. [H] has 29 years' clinical experience as a registered social worker. She has extensive experience working with vulnerable individuals, including, persons with Autism Spectrum Disorder. She uses a person-centred approach and her work has focussed on the needs of individuals requiring support who may require enhanced support, including residential care. Her experience is both in the private and public sector and her focus is very much informed by a commitment to the principles of ADM. She is ideally placed to perform the role of DMR in the present case.

 

Assets

19.         From paragraphs 21 to 24 of her affidavit, Ms. O'Dwyer makes averments in relation to the respondent's assets and I note the contents of the schedule exhibited.

 

EPA/AHD

20.         At para. 27 its averred that there is no Enduring Power of Attorney ("EPA"), or Advanced Healthcare Directive ("AHD") known to exist.

 

Declaration

21.          In light of the evidence which I have referred to, it is appropriate to make the following declaration pursuant to s.55(1)(b)(ii) of the 2015 Act, i.e. to declare that the respondent lacks capacity to make decisions regarding his Personal Welfare and Property and Affairs even if the assistance of a suitable person as co-decision maker were to be made available to him.

 

Orders

22.         I am very grateful to Ms. O'Dwyer who has furnished a draft and, to make orders in those terms reflects the evidence before me. Having already made a s.27 order, a summary of the balance of those orders is as follows:

 

·         to formally discharge the respondent from Wardship, remitting him to the management of his affairs with the appointment of a suitable DMR;

 

·         to appoint Ms. [H] as that DMR in the areas of Personal Welfare and Property and Affairs decision - making, under s.55(5)(b) of the 2015 Act;

 

·         to order that the respondent is entitled to receive his assets held by the accountant of the Court of Justice and those assets in the Committee Account with the General Solicitor;

 

·         to order that Ms. [H], as DMR, on the production of a bank account in the name of herself and the respondent (which account will be under her control, custody and management) be authorised to receive the assets held on the respondent's behalf;

 

·         to order that the DMR account to the Director of the Decision Support Service (the "DSS") as required by s.46(6) of the 2015 Act;

 

·         the DMR is authorised to receive payment of the respondent's Department of Social Protection Disability Allowance and, again, the DMR is to account to the Director of the DSS per s.46(6). In circumstances where this payment is currently received by the Committee, arrangement can be made in that regard;

 

·         the accountant of the Courts of Justice is to carry out the directions in the payment schedule;

 

·         given that Ms. [H] is a 'panel' DMR, it is appropriate to order, pursuant to s.42(1) and (2), that she is not entitled to be reimbursed, from the assets of the respondent, in relation to either expenses or remuneration in connection with carrying out the role of DMR;

 

·         given the permanent nature of the respondent's condition, it is appropriate to order that his capacity be reviewed by the Circuit Court no later than 3 years from today's date;

 

·         the former Committee is authorised to provide a copy of the court papers and pleadings to the DMR; and

 

·         I note from the draft that there is no application for an order for costs.

 

23.         The final word must be to pass on congratulations to Mr. [N] on leaving Wardship, because that is entirely consistent with his will; to wish him and Ms. [H] the very best for their future relationship; and to repeat sincere thanks to Ms. [E] for all her support of the respondent.

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