Decision theory
A new decision-making framework signifies a generational shift in Irish capacity law, one that positions the relevant person’s will and preferences above the once dominant paternalistic viewpoint. Stephen Walsh explains
The Assisted Decision-Making (Capacity) Act 2015 heralded a transformative moment in Irish law, supplanting an ‘all-or-nothing’ wardship system with a rights-based framework that places autonomy at its core.
Key to this evolution is the decision-making representation order (DMRO), which empowers courts to appoint a decision-making representative (DMR) when less restrictive supports (such as codecision-making) prove inadequate.
While the decision-making representation order strengthens respect for the individual’s will and preferences, it has also laid bare a host of practical challenges – from simmering family tensions to the intricate demands of properly assessing capacity under the act’s functional model.
Rights-based capacity
Before the act came into force, wardship operated on the premise that a person deemed ‘of unsound mind’ lacked the ability to make decisions across the board. This binary approach left little space for the person’s voice or for fluctuating capacity.
By contrast, the act embraces functional capacity: a person is assessed, decision by decision, taking account of whether they can understand, retain, and weigh relevant information, and communicate a choice.
Section 8 of the act embodies the principle that a person’s capacity must be supported wherever possible, including measures to ascertain or facilitate their will and preferences.This approach contrasts sharply with the old wardship model, which tended to view capacity as a single, all-or-nothing trait.
In Joan Doe v HSE (2023), O’Connor J emphasised that “the court must be mindful of the fact that a person not having the ability to make a decision on a particular matter does not mean that their wishes are to be totally disregarded”.
This recognition demonstrates a shift toward understanding capacity as a situational concept rather than a static one, capable of emerging or strengthening, once appropriate supports are in place.
Tiered framework
The act envisions a tiered framework of decision-making supports, where a DMR becomes necessary only when a person cannot make specific decisions, even with appropriate assistance.
Once appointed, the DMR must follow the individual’s will and preferences, rather than substituting their own notion of ‘best interests’.
While this model starkly departs from older paternalistic practices, it can also pose real-world dilemmas when concerns about a person’s welfare intersect with their autonomy.
A recent illustration arises with In the matter of MA (2024), where the court affirmed that maintaining a structured residential placement, complete with regulated family contact, was essential to the relevant person’s wellbeing.
Although the individual’s expressed desire was to live elsewhere, the court’s orders recognised that her capacity-related challenges necessitated a supportive environment to prevent potential risks.
This decision underscores how respecting autonomy under the act does not mean dismissing genuine safety or care needs.
For solicitors, the lesson is clear: even when a DMR must manage practical necessities, the guiding principle remains the person’s own wishes, so far as they can be ascertained, tempered by the need to ensure dayto-day security and support.
Solid foundation
Section 3 of the act frames capacity as a functional concept, moving beyond a simple medical label. Rather than concluding someone ‘lacks capacity’ altogether, an assessor must look at each decision in isolation, determining whether the person can understand, retain, and use or weigh the relevant information and communicate a choice in any way, be that orally, in writing, through assistive technology, or otherwise.
A widely used ‘Part 5’ template illustrates how this process should be documented, including details of the person’s past and present beliefs, the complexity of the decision in question, and any supportive measures that might enable them to make that choice.
Although the act does not stipulate who must carry out such assessments, in practice, GPs and other medical practitioners currently produce the bulk of capacity reports, sometimes relying on a standard medical form rather than the more granular functional approach envisioned by the act.
In CF (2023), for instance, the High Court reinforced that a blanket diagnosis of dementia was insufficient to prove incapacity across all domains; instead, the court needed evidence of how the individual’s cognitive challenges specifically affected each decision.
Because a person may be perfectly capable of deciding on everyday financial matters, yet struggle with more complex property transactions, the act stresses the importance of detailing any available supports (for example, simplified explanations or a co-decision-maker).
If a report lumps every decision into one sweeping statement of incapacity or overlooks practical ways to enhance decision-making, the courts may find that a DMR has been prematurely appointed.
For solicitors, therefore, ensuring the functional assessment is suitably tailored, covering the exact decisions at issue and the supports employed, is central to upholding the act’s ethos: enabling the person’s autonomy rather than sidelining them.
Evidential hurdles
Although the act places considerable emphasis on hearing the relevant person’s voice, it offers only general guidance on how to achieve this, particularly when capacity issues make active participation stressful or impractical.
Section 139 presumes that the relevant person will attend court (in person or by video-link) but, in reality, many individuals at the centre of capacity proceedings cannot meaningfully engage due to the very issues in dispute, and the prospect of a formal hearing may exacerbate their distress.
Independent advocacy organisations, such as Sage Advocacy, try to close this gap by producing reports that convey the person’s will and preferences. However, these resources are frequently strained.
Legal-aid provisions allow for the appointment of an ‘independent solicitor’ to protect the relevant person’s rights and, in the absence of a dedicated advocacy report, that solicitor could adopt a dual role: with careful communication, they could submit an affidavit articulating the person’s views.
Although some judges differentiate between an advocate’s report and an independent solicitor’s affidavit, nothing in the act precludes the solicitor from fulfilling both functions, provided they remain strictly faithful to the client’s expressed wishes, rather than advancing a ‘best-interests’ approach.
This dual role is crucial where the relevant person cannot handle the strain of a personal or remote appearance.
By allowing either an independent solicitor or an independent advocate to step in and capture the individual’s voice, the act’s core commitment to autonomy is more likely to be honoured, even when practical or clinical limitations prevent the person from attending court in the usual manner.
Disputes over who should serve as DMR often cast a spotlight on the emotionally charged dimension of capacity law.
Sometimes, siblings or other relatives believe that they alone can uphold the relevant person’s will and preferences, yet end up clashing in ways that overshadow the individual’s actual needs.
In Joan Doe, for instance, the siblings insisted that they were best suited to care for their sister, but O’Connor J concluded that “too many issues had been raised in the court which indicated a serious conflict of interest”.
The court instead appointed an independent decision-making representative from the Decision Support Service panel.
A similar tension emerged in AB (2024), where family members sought an order transferring property in the name of a loved one, but failed to persuade the judge that it matched the person’s past or present will and preferences.
In rejecting the application, the court stressed that “communication difficulties do not equate with reduced decision-making capacity”, highlighting how vital it is to ascertain the individual’s authentic wishes.
These rulings confirm that, while family input is important, judges will look beyond personal rivalries to protect the relevant person’s welfare and autonomy.
Conflict alone rarely disqualifies relatives, but if a family feud threatens to submerge the person’s voice or run counter to their best interests, the court may opt for an independent DMR, thereby honouring the act’s commitment to centring the individual’s rights above all else.
Ethical considerations
By directing DMRs to respect the individual’s decisions, even if they seem unwise, section 38 of the act embraces the concept often referred to as ‘dignity of risk’.
In practice, this can spark a healthy tension between preserving the person’s welfare and upholding their freedom to make a choice that might appear precarious.
Truly respecting autonomy means acknowledging the right to self-determination, even when outcomes are uncertain.
For solicitors, such scenarios pose a familiar dilemma. Advising a client who insists on a risky financial venture or a controversial medical refusal might sit uneasily with concerns for their wellbeing.
Yet the act’s key message is that paternalism must not override the person’s express will and preferences, unless absolutely necessary. As long as the individual has made their voice clear through the act’s formal processes, the law permits them to choose their own path, wise or unwise though it may appear.
Charting the next chapter
The decision-making representation order framework marks more than a legislative tweak: it signifies a generational shift in Irish capacity law, one that positions the relevant person’s will and preferences above the once-dominant paternalistic viewpoint.
Courts have emphasised that capacity is context driven, that family tensions cannot eclipse an individual’s autonomy, and that a flurry of medical opinions alone does not justify removing someone from their own decision-making role.
Yet the new model is not without its growing pains: uncertainty about how best to amplify the relevant person’s voice, the challenge of obtaining robust functional-capacity assessments, and fraught family disputes have kept practitioners on their toes.
Still, the act’s promise remains clear: real progress depends on empowering rather than displacing. For solicitors, medical practitioners and families alike, this requires vigilance in tailoring supports, a careful approach to conflict resolution, and an unwavering commitment to hearing the individual at every turn.
If we accept that ‘voice’ is the core of truly rights-based capacity law, we edge ever closer to an Ireland in which autonomy is not merely an aspiration, but a lived reality, even for those with complex support needs.
Stephen Walsh is the principal solicitor at Stephen Walsh & Co, Solicitors, in Naas, Co Kildare.
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Stephen Walsh
Stephen M Walsh is principal of Stephen Walsh & Co, Solicitors, Naas, Co Kildare