A recent High Court judgment highlights the changes coming when the Assisted Decision-Making (Capacity) Act 2015 comes into operation and the wardship regime is scrapped.
Assisted Decision-Making (Capacity) Act 2015
The long-awaited Act will bring significant changes to the regime for assisting individuals who lack the capacity to make their own decisions. It has been awaiting commencement for a considerable period of time. Promised commencement dates have come and gone. The Department of Children, Equality, Disability, Integration and Youth has now announced that the Act is to be commenced on 21 November 2022.
High Court judgment
In a recent High Court judgment, Re JD [2022] IEHC 518, Hyland J sets out how the regime under the Act differs significantly from the current, wardship, regime.
The case concerned a young man of 19-years old who has bipolar disorder and who had issues concerning his approach to taking his medication and how he conducted himself in the residential facility. The Court stressed that any assessment of the young man’s decision-making must be taken mindful of his young age, where a young person may have poor decision-making capability.
The Court noted that under the wardship rules, there is no explicit test for evaluating capacity. The Lunacy Regulation (Ireland) Act 187 charges the High Court with deciding whether a person is of unsound mind and incapable of managing their person or property. If so found, then that person is declared a ward of court. However, under the new Act, there is a four-part test for evaluating capacity. The 2015 Act requires identification of a specific area where the person lacks capacity. A person may be identified as lacking capacity in one area and not others. Whereas, under the wardship rules, if a person is found to lack capacity, they are declared a ward of court.
Hyland J concluded that JD did lack capacity in some areas. Therefore, the Court determined, he should be made a ward of court.
The case highlights the importance of the forthcoming legislation, which will bring Ireland in line with its obligations under the Convention on the Rights of Persons with Disabilities.
