The Assisted Decision-Making (Capacity) Act was commenced on 26 April 2023, introducing a three-tier system of assisted decision-making, as well as providing for future decision supports such as Enduring Powers of Attorney (EPAs) and Advance Healthcare Directives (AHDs). The legislation also marked the end of the High Court’s power to make new wardship orders. Wardship had been used to protect vulnerable adults. In the absence of these powers, and in the absence of new laws providing for these types of cases, the High Court has relied on its inherent jurisdiction to make orders. We consider these developments.

Inherent jurisdiction

The term ‘inherent jurisdiction’ refers to the power of the High Court to make orders, where such orders are not already provided for in legislation. In other words, there does not need to be a statutory basis for the order and is sometimes referred to as a ‘backstop’. The inherent jurisdiction is provided for by the Irish Constitution, allowing the High Court to vindicate the fundamental constitutional rights of an individual where not expressly provided for under statute, such as the right to life or welfare. The new legislation specifically sets out that “Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity”

Recent examples of applications

Not surprisingly, there have been a number of cases since April 2023 where the High Court has been asked to invoke it’s powers under the inherent jurisdiction, in cases where the vulnerable adult is deemed to lack capacity in respect of the relevant decision. Examples of recent cases include:

• A hospital seeking orders permitting nasogastric feeding in a case involving a patient with Anorexia Nervosa
• A hospital seeking orders permitting clinicians to carry out a Caesarean section on a pregnant patient who was found to lack capacity to make decisions about her health and the birth of her child
• A healthcare organisation seeking orders regulating visitors to a vulnerable adult in a care setting

Safeguards

Notwithstanding the change in the legal basis, it is clear that the High Court has retained all the procedural safeguards from wardship cases. The views and wishes of the vulnerable adult should be heard before the Court where possible, and this is most commonly achieved through the appointment of an independent solicitor who will meet with the vulnerable adult and report to the Court. Additionally videolink facilities allow participation and direct communication between patients and the Courts. Orders under the inherent jurisdiction are reviewed regularly, at short intervals. Significantly, the High Court’s powers are being applied judiciously, and only as a measure of last resort.

Conclusion

The protections offered by the inherent jurisdiction of the High Court should only be sought where no legislative provisions can adequately address the situation. Careful consideration of the new Assisted Decision-Making (Capacity) Act and mental health legislation is required to identify any possible statutory reliefs.

Our team is always available to discuss these types of cases, so whether you are seeking an informal call or urgent advices, please get in touch with a member of our Health & Prosecutions team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.