The High Court has continued existing orders for the detention, care and treatment of an anonymised woman in a Dublin community nursing unit, after ruling that a statutory review under the Assisted Decision-Making (Capacity) Act 2015 was required but could not result in either continued detention or discharge under that Act.
In a judgment delivered on 1 February 2024, President of the High Court David Barniville said the woman was detained in a non-approved centre on a wardship order when the Act took effect on 26 April 2023, and remained there. Section 108 therefore required the court to review her detention, even though she did not have a “mental disorder” as defined by the Mental Health Act 2001 and had no consultant psychiatrist responsible for her care.
The review heard evidence from an independent consultant psychiatrist and a consultant geriatrician. Both considered that the woman did not have a mental disorder. The judge said she lacked capacity to make relevant decisions, including where to live, and that her current placement met her substantial care needs. She has repeatedly expressed a wish to return to her former home, but the evidence described her as dependent on staff and at risk of harm if living independently.
The HSE argued that a review was not required for a ward without a mental disorder or responsible psychiatrist. Alternatively, it said the review should be dispensed with because the statutory evidence requirement could not be met. The woman’s independent solicitor argued the review had to proceed. Both parties agreed that the court could continue the existing wardship orders.
The judge rejected the HSE’s arguments on whether the review was required and whether it should be terminated. He found that the evidence did not establish that the woman was suffering from a mental disorder, so detention could not be continued under section 108(2). Nor could she be discharged under section 108(4), which the judge held applied where a person had previously suffered from a relevant mental disorder but no longer did. The evidence did not show that she had ever suffered from one. He therefore made no order on the section 108 review, apart from provision for the independent solicitor’s costs.
Separately, exercising the court’s continuing wardship jurisdiction, the judge continued the existing orders, including detention and related care and treatment provisions, finding them necessary, appropriate and in the woman’s best interests. He directed a further wardship review within three months of judgment. The judgment said counsel would be heard on the formal order and the date of the next review; it did not itself set a specific review date.