Mandatory Capacity Declarations and Proportionate Decision-Making Representation on Discharge from Wardship: Commentary on Health Service Executive v VV [2025] IEHC 714

1. Introduction

Health Service Executive v VV (A Person of Unsound Mind Not So Found) [2025] IEHC 714 is a significant High Court judgment on the Assisted Decision-Making (Capacity) Act 2015 (“the 2015 Act”), delivered by Dignam J in the Wards of Court list on 12 December 2025.

The case arises in the transitional phase from the historic wardship system under the Lunacy Regulation (Ireland) Act 1871 to the rights-based regime of the 2015 Act. It addresses three interlinked questions of systemic importance:

How the High Court must frame capacity declarations under s.55(1) of the 2015 Act when reviewing the capacity of an existing ward (or intended ward) for the purpose of discharge;
How broad the appointment of a decision-making representative (“DMR”) must or may be where the court finds that the person lacks capacity across the domains of “personal welfare” and “property and affairs”;
What the court should ask a medical visitor to assess by way of a functional capacity assessment in discharge applications – a narrow assessment limited to specific identified issues, or a broad, unrestricted functional assessment.

The judgment is framed around the particular circumstances of Mr V, a man with autism, severe intellectual disability and challenging behaviour, who has been in a high-dependency placement for many years and is non-verbal. A dispute between his treating psychiatrist and his GP regarding psychotropic medication triggered an application by the Health Service Executive (“HSE”) for his admission to wardship under the 1871 Act, with an immediate review and discharge under Part 6 of the 2015 Act.

While the factual trigger was narrow (disputes about medication), the High Court uses the case to lay down general principles on:

the mandatory nature of capacity declarations under s.55(1);
the interaction between those declarations and the scope of DMR appointments under Part 5;
the role and scope of medical visitor assessments in the mass discharge of approximately 1,400 existing wards by April 2026.

In doing so, the Court builds on the Court of Appeal’s analysis of the 2015 Act in Child and Family Agency v KK [2024] IECA 242 and provides a practical framework for judges, practitioners, the HSE, guardians ad litem, and the Decision Support Service (“DSS”) in transitional wardship cases.

2. Factual and Procedural Background

2.1 Mr V’s circumstances

Mr V is an adult with:

a diagnosis of autism spectrum disorder;
intellectual disability (described as moderate to severe);
a non-verbal presentation with very limited communicative ability;
a long history of severely challenging behaviour and episodes requiring high levels of support;
treatment in a high-dependency unit with a structured care environment.

He has been under the care of a consultant psychiatrist, Dr B, since April 2019 and has been prescribed a complex regimen of psychotropic medications. These medications are off-label in some respects and above licensed doses, but are considered by Dr B to be significantly beneficial and consistent with the “least restrictive, most proportionate” principle under the 2015 Act.

2.2 Trigger for the proceedings

A dispute emerged between Dr B and Mr V’s general practitioner over the appropriateness and safety of the psychotropic medication regime. Owing to his concerns, the GP allegedly refused to prescribe Mr V’s medication from January 2022, apparently without Dr B’s knowledge. Mr V required two emergency hospital admissions in 2022; his medications were adjusted and he stabilised.

The HSE concluded that:

Mr V lacked capacity to decide on his medical and psychiatric treatment;
a formal legal framework was needed to authorise and stabilise his medical care; and
wardship under the 1871 Act, followed by discharge with decision-support under the 2015 Act, was the appropriate legal route.

2.3 Transitional context and statutory route

Because the application to admit Mr V to wardship was initiated before the commencement of the 2015 Act provisions (early 2023), the Lunacy Regulation (Ireland) Act 1871 remains applicable to the admission decision (s.56(3) of the 2015 Act). However:

s.56(5) of the 2015 Act allows the High Court to review Mr V’s capacity immediately upon (or in tandem with) his admission to wardship;
that review is conducted under s.55, which mandates the court to make certain declarations about his capacity and, if appropriate, to make Part 5 orders including appointing a DMR;
once a DMR is appointed, the wardship is to be discharged and Mr V transferred fully into the 2015 Act regime.

This case thus lies at the junction of three regimes:

the residual wardship system under the 1871 Act;
the discharge and review provisions in Part 6 of the 2015 Act (ss.54–56);
the general decision-support architecture of Part 5 (ss.36–45), normally exercised by the Circuit Court.

2.4 Practice Directions and evolving issues

Initially, Practice Direction HC120 applied. Under HC120, in discharge applications a medical visitor was automatically directed to carry out a functional capacity assessment. That report would usually be the central capacity evidence informing:

the court’s declaration(s) under s.55(1); and
any decision-support to be ordered upon discharge (e.g. DMR appointment).

In May 2025, the President of the High Court issued Practice Direction HC133 (effective 3 June 2025). HC133:

removed the automatic requirement for a medical visitor’s functional capacity assessment; and
allowed the court to rely on capacity assessments from Registered Medical Practitioners, while retaining discretion to appoint a medical visitor where appropriate.

This procedural change, combined with new evidence about the breadth of Mr V’s capacity deficits, shifted the central issue:

Initially, the HSE asked whether the medical visitor should be directed to assess capacity only in relation to medication and treatment decisions, or to carry out a global functional assessment;
By the time of the hearing, with HC133 in force and extensive medical evidence already available, the key questions had become:
- How broad can/must the capacity declarations under s.55(1) be?
- How broad can/must any DMR appointment be?

2.5 Additional decision areas beyond medication

Although the application was initially framed solely around medical treatment, discussions between the guardian ad litem (“GAL”), the HSE’s solicitors and Mr V’s placement revealed further areas where decision support might be necessary:

General access to and management of healthcare, including primary care (Mr V had not seen a GP for two years).
Finances, including social welfare payments and personal spending. Mr V has no control over his finances; his Disability Allowance is collected and administered by his mother.
Arrangements for family visits and contact.

These additional domains broadened the canvas on which the court had to consider capacity, declarations and decision-support.

2.6 Medical evidence of capacity

Four key medical reports informed the court:

Dr B (treating psychiatrist)
- March 2024 “Psychiatric Update”: stated that, due to a “complex medical mental disorder”, Mr V “continues to lack decision-making capacity in all personal important areas affecting his welfare including his medical care” and remains “a person…of unsound mind”.
- February 2025 “Capacity assessment…for the intention to appoint a DMR”: opined that Mr V has always lacked capacity “in relation to all aspects of his personal welfare and all decisions in relation to his healthcare including medical and psychiatric treatment” and that this incapacity extends also to his finances. He concluded that Mr V is unable to understand, retain, weigh or communicate any specific decision, and that no level of assistance (even a co-decision-maker) would alter this.
Dr K (medical visitor) – July 2023:
- conducted a functional capacity assessment based on engagement with Mr V, staff information and records;
- found that Mr V:
  - requires assistance with basic personal care;
  - does not understand his healthcare needs or treatment choices;
  - cannot understand, retain or weigh information about financial matters;
- concluded that Mr V is “of unsound mind and incapable of managing his person and affairs”.
Dr M – November 2023:
- confirmed diagnoses of autism, moderate intellectual disability, epilepsy, challenging behaviour;
- found that Mr V can understand only extremely basic information (e.g. a picture of yoghurt as “food”), cannot process or decide on anything more complex, and cannot meaningfully communicate preferences beyond the basic;
- concluded that Mr V fails all four tests of capacity under the 2015 Act and is “unable to manage his person, affairs, well-being, health or placement”;
- importantly, opined that Mr V does not meet the definition of “mental disorder” under the Mental Health Act 2001 – hence the 2015 Act regime is the appropriate framework.

While Dr B’s first report focused on personal welfare and healthcare, his second report, read together with Dr K and Dr M, convinced the Court that the evidence established a lack of capacity across all matters within the statutory definitions of “personal welfare” and “property and affairs”.

3. Summary of the Judgment

3.1 Capacity finding

On the medical evidence, Dignam J stated that, if he had to decide capacity at this stage, he would be satisfied that:

Mr V lacks capacity in relation to all matters encompassed by the definitions of “personal welfare” and “property and affairs” in s.2 of the 2015 Act;
this incapacity is unlikely to improve in the foreseeable future.

The Court’s analysis proceeds on this basis.

3.2 Declarations under s.55(1): mandatory and not confined to immediate decisions

Section 55(1) is expressed in mandatory terms. When a review application under s.54 comes before the High Court, the court must make one or more of three types of declaration:

that the ward does not lack capacity (s.55(1)(a));
that the ward lacks capacity unless assisted by a co-decision-maker (s.55(1)(b)(i));
that the ward lacks capacity even with such assistance (s.55(1)(b)(ii)).

The HSE argued that, to comply with the guiding principles of necessity, proportionality and minimal intervention (s.8), the court should only make declarations in relation to matters where a decision must be made now or in the near future. Dignam J rejected this interpretation, holding that:

The mandatory language of s.55(1) means the court cannot abstain from making a declaration where it has evidence on a matter;
If the evidence clearly shows a lack of capacity in relation to a matter (e.g. finances), the court cannot refuse to declare incapacity merely because no immediate financial decision is pending;
Nor can the court declare that the person “does not lack capacity” in that area when the evidence is to the contrary; that would be an absurd result;
Accordingly, where evidence is before the court, declarations of capacity or incapacity must be made in respect of those matters, whether or not a concrete decision is imminent.

On the evidence as it stood, the Court indicated that, when the time comes to determine the application, it will have to make a declaration under s.55(1)(b)(ii) that Mr V lacks capacity in respect of all matters under “personal welfare” and “property and affairs”.

3.3 Appointment and scope of a decision-making representative

Under s.55(5), where a s.55(1)(b)(ii) declaration is made, the wardship court must:

make such orders and directions under Part 5 as it considers appropriate; and
discharge the ward from wardship upon the appointment of a DMR.

The HSE contended that:

a DMR should be appointed only for those specific matters where a decision is currently required (initially, healthcare and medication; later, healthcare, finances and visiting);
appointing a DMR for all personal welfare and property/affairs would be unnecessary, disproportionate and akin to re-creating wardship.

The Court held:

Appointment of a DMR is itself an “intervention” and is governed by s.8’s principles of necessity, proportionality, minimal restriction and respect for autonomy;
However, in a case like Mr V’s, where the court has properly found that he lacks capacity in all personal welfare and property/affairs matters, and where the wardship court is obliged to discharge him from wardship, it is necessary and proportionate to appoint a DMR with authority across these broad domains;
Necessity is not confined to situations where an immediate decision is pending; if the person cannot make decisions in a given area, then a structure must exist to make or support those decisions as and when they arise, to avoid repeated court applications and to vindicate the person’s rights;
Yet, to respect minimal intervention, specific sub-matters within “personal welfare” or “property and affairs” that are demonstrably irrelevant or unlikely ever to arise may and should be excluded from the DMR’s remit (e.g. decisions about dissolving a partnership where the person has never been, and is unlikely to be, a business partner).

Accordingly, the Court concludes that:

it is not required to appoint a DMR for every theoretical sub-matter within the statutory definitions;
but where global incapacity is established, the starting point is a DMR with authority for personal welfare and property/affairs, subject to evidence-based exclusions of irrelevant matters.

3.4 Medical visitors: scope of assessment

Although, in light of HC133 and the comprehensive existing medical evidence, it was not necessary to appoint a medical visitor in Mr V’s case, the Court addressed the systemic question of what instructions should be given to a medical visitor in discharge applications.

The HSE argued that:

appointing a medical visitor and asking for a global functional assessment is itself an “intervention” and may be disproportionate;
the visitor should be asked only to assess capacity in those domains where decisions are currently, or soon will be, required.

Dignam J rejected this approach and held that:

Where a medical visitor is appointed, the correct approach is to ask for a full functional capacity assessment, not one limited to pre-selected matters;
Limiting the assessment presupposes that the court (or parties) already knows where capacity is in doubt and what decisions will arise – which is often not the case;
A narrow assessment risks leaving unassessed (and therefore unsupported) other important domains (e.g. finances) where the person may lack capacity, thereby undermining the protective and enabling purposes of the Act;
This would not be consistent with the 2015 Act’s purpose or with vindicating the rights of persons being discharged from wardship.

Given the statutory requirement that all wards be discharged by 25 April 2026 and the large number of pending or anticipated discharge applications, the Court regarded this as an issue of systemic importance and clarified that medical visitors should ordinarily be asked to carry out broad functional assessments.

3.5 Key conclusions (para 75)

The Court’s indicative conclusions can be summarised as follows:

The current evidence establishes that Mr V lacks capacity in all “personal welfare” and “property and affairs” matters.
It is not necessary in this case to direct a medical visitor to conduct a further assessment.
If the evidence remains the same, the Court will make a s.55(1)(b)(ii) declaration covering personal welfare and property/affairs.
It would then be necessary and proportionate to appoint a DMR in respect of all matters within those broad domains.
Particular sub-matters should be excluded from the DMR’s remit if evidence shows that a decision in respect of them will not, or is unlikely to, arise at any stage.
The parties are afforded an opportunity to adduce evidence as to which specific matters, if any, should be excluded on that basis.
If a medical visitor were required, the court would not limit the assessment to specified matters; a full functional assessment would be directed.

4. Analysis of the Judgment

4.1 Precedents and authorities

4.1.1 Child and Family Agency v KK [2024] IECA 242

Dignam J relies significantly on the Court of Appeal’s decision in Child and Family Agency v KK, delivered by Hogan J. That case is cited for two main propositions:

The fundamental shift from global to functional assessments of capacity. Hogan J emphasised that the 2015 Act introduces a “functional” approach, under which a person may lack capacity in one domain (e.g. basic financial decisions) yet retain capacity in another (e.g. deciding where to live). This stands in sharp contrast to the “binary” approach of wardship, where lack of capacity in one area effectively led to a global loss of autonomy.
The centrality of the guiding principles in s.8. Hogan J highlighted, and Dignam J reaffirms, that s.8 requires interventions to:
- minimise restriction of rights and freedom of action (s.8(6)(a));
- be proportionate to the significance and urgency of the matter (s.8(6)(c));
- be, where practicable, time-limited (s.8(6)(d));
- respect dignity, bodily integrity, privacy, autonomy and control over financial affairs and property (s.8(6)(b)).

HSE v VV applies these principles in a nuanced way to the transitional context: recognising the functional approach to capacity, but also recognising that, in some cases, a functional assessment may Iead legitimately to a “global” conclusion of incapacity across all domains.

4.1.2 Hyland J’s 2023 judgment (referenced in KK)

Although not analysed in detail here, Hyland J’s earlier High Court judgment (June 2023) – endorsed by Hogan J – is referenced for its characterisation of the 2015 Act as “more nuanced and proportionate” than the wardship regime. It underpins the interpretative stance that:

interventions must be tailored to the individual’s abilities and needs;
blanket or status-based assumptions of incapacity are impermissible;
supporting decision-making autonomy, rather than supplanting it, is the primary aim.

Dignam J’s reasoning is consistent with this: he insists on evidence-based determinations of capacity and rejects both:

an automatic global loss of autonomy as in the old wardship model; and
an artificially narrow approach which would confine declarations and DMR appointments to only the currently contested issue, even though the evidence clearly shows broader incapacity.

4.2 Interpretation of s.55(1): mandatory declarations and their scope

4.2.1 The mandatory nature of s.55(1)

Section 55(1) uses the language “shall” and requires the wardship court, on an application brought under s.54, to:

declare that the ward does not lack capacity; or
make one or more specified declarations of lack of capacity (with or without possible co-decision-making assistance).

This gives the court no discretion to abstain from deciding the question of capacity in respect of matters for which it has evidence. That is a crucial textual anchor for the Court’s rejection of the HSE’s argument.

4.2.2 The HSE’s preferred interpretation and why it fails

The HSE’s core submission was:

Because capacity is decision-specific and time-specific (s.3) and because interventions must be necessary and proportionate (s.8), the court should make capacity declarations only:
- in respect of matters where a decision needs to be taken now or soon; and
- perhaps, in respect of a short-term foreseeable horizon (e.g. until the next review).
Accordingly, the court should restrict its consideration (and any medical visitor’s assessment) to such immediately relevant matters. In Mr V’s case, that would initially be healthcare/medication, later also finances and visiting arrangements.

Dignam J accepts that s.3 and s.8 lend some surface support to that argument, but ultimately finds it untenable because:

It conflicts with the mandatory wording of s.55(1). If the court has evidence showing that Mr V lacks capacity in relation to finances, it must either:
- declare that he lacks capacity in relation to finances; or
- declare that he does not lack capacity – the latter being contradicted by the evidence.
There is no middle option of “saying nothing” about capacity in that domain.
It would compel declarations contrary to the evidence. On the HSE’s logic, if no current financial decision is required, the court could not declare incapacity in relation to finances – and so would be forced into a declaration of capacity (s.55(1)(a)), contradicting the clear medical evidence.
Such an interpretation is absurd and cannot be correct. A construction of the Act that produces mandatory declarations inconsistent with the evidence must give way to one that both respects the text and avoids absurdity.

Therefore, where evidence exists, the court must make a declaration under s.55(1) for that matter, regardless of whether a concrete decision is immediately required.

4.2.3 Distinguishing s.55 from s.37: different regimes for former wards and new applications

The HSE also argued that if the High Court could (or must) make broad declarations in s.55 review cases, wards like Mr V would be in a worse position than persons who are the subject of fresh capacity applications under s.37 in the Circuit Court. Under s.37:

the court may make declarations of lack of capacity (the language is discretionary);
the court can, in practice, focus on specific domains where an issue has arisen, rather than conducting a wholesale review of all possible matters.

Dignam J responds that:

the Act itself envisages a difference in treatment between former wards and new applicants by using mandatory language in s.55 and discretionary language in s.37;
this reflects the legislature’s intention that, as part of the discharge process for hundreds of existing wards, the High Court must review and regularise their legal status by making clear declarations about their capacity on the matters for which evidence is available.

Thus, the fact that former wards may receive broader declarations than some new applicants is not an impermissible inequality; it is part of the statutory architecture of the transition from wardship to the 2015 Act system.

4.3 Necessity and proportionality in appointing a decision-making representative

4.3.1 Appointment as an “intervention” under s.8

Appointment of a DMR is clearly an “intervention” within the meaning of the Act. As such, it must:

only occur when “necessary…having regard to the individual circumstances” (s.8(5));
minimise restriction of rights and freedom (s.8(6)(a));
respect dignity, bodily integrity, privacy, autonomy and control over financial affairs and property (s.8(6)(b));
be proportionate and, where practicable, time-limited (s.8(6)(c)-(d)).

The HSE pressed that necessity should be judged strictly by reference to whether a decision is currently required in a given domain: if not, no DMR should be appointed for that domain.

4.3.2 The Court’s broader conception of necessity

Dignam J accepts that s.8 applies, but rejects such a narrow conception of necessity, particularly in a case where:

the court has already determined (on strong evidence) that Mr V lacks capacity in all domains;
the court is required to discharge him from wardship; and
without a DMR, he would be left without any lawful mechanism for making, or having made, decisions in domains where he has no capacity.

The Court reasons that:

Where a person has been found to lack capacity in a given domain, there is a structural necessity for decision-support in that domain – not just at the precise moment a decision arises;
Without a DMR (or other support), decisions in those areas could not be made or would require recurrent applications to the Circuit Court under ss.36–38 every time a new decision arose;
Such repeated applications would:
- be burdensome and potentially deplete the person’s assets;
- delay or obstruct necessary decisions affecting personal welfare and finances; and
- undermine the 2015 Act’s purpose to facilitate timely, supported decision-making.

Accordingly, in a case of global incapacity like Mr V’s, a broad DMR appointment is:

necessary to give effect to his right to have decisions made for his benefit in areas where he lacks capacity; and
proportionate because it does not further restrict autonomy he does not in fact possess, but instead enables decisions to be made in compliance with the Act’s ethos and safeguards.

4.3.3 Excluding irrelevant sub-matters: “fine-tuning” the order

The Court balances this broad approach with an important qualification: the guiding principles require that the DMR’s powers not extend to matters which, on the evidence, will not or are unlikely ever to arise.

The Court gives the concrete example of:

the sub-matter under “property and affairs” of “the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner”.

If Mr V has never been (and is highly unlikely to become) a business partner, there is no necessity for the DMR to hold this specific power. The appropriate approach is:

Start from the fact-based finding that Mr V lacks capacity across the domains of personal welfare and property and affairs.
Appoint a DMR across those domains in principle.
Identify and exclude sub-matters from the DMR’s remit where evidence shows that such decisions are unlikely ever to be required.

The Court expressly invites the parties to adduce evidence of such sub-matters so that the eventual DMR order can be tailored accordingly.

4.3.4 Addressing the fear of “recreating wardship”

The HSE expressed concern that appointing a DMR in respect of all personal welfare and property/affairs would, in practice, replicate the old wardship system, under which a person lost all legal autonomy once taken into wardship.

Dignam J rejects this analogy for several reasons:

Functional basis: Under wardship, a person’s legal incapacity was effectively global irrespective of functional capacity in particular domains. Under the 2015 Act, broad incapacity findings like Mr V’s must be based on functional evidence across those domains. Many persons will be found to lack capacity only in specific areas and will retain autonomy elsewhere.
Guiding principles: A DMR must act in accordance with s.8. That includes:
- encouraging and facilitating the person’s participation;
- giving effect to the person’s will and preferences in so far as practicable;
- acting at all times in good faith and for the person’s benefit;
- considering all relevant circumstances.
This is fundamentally different from the paternalistic committee-based wardship model.
Safeguards and oversight: The Act allows specified persons to seek declarations as to the lawfulness of proposed interventions (ss.36–37), and DMRs must attest to their understanding and compliance with s.8. There is an oversight regime, including the potential role of the DSS, which is absent from the 19th-century wardship structure.

For these reasons, broad DMR appointments in cases of globally evidenced incapacity are compatible with the 2015 Act’s ethos and are not a return to wardship in substance.

4.4 Section 3 and the timing of capacity assessments

Section 3(1) provides that “a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision…in the context of the available choices at that time.”

The HSE relied on this to argue that:

capacity can only be assessed when a particular decision actually arises; and
therefore, declarations and DMR appointments should be confined to decisions that are currently, or imminently, in play.

Dignam J expresses doubt about this strict temporal reading. Without finally deciding the issue, he suggests a more practical and coherent interpretation:

Section 3 is concerned with the nature of the assessment – it must be functional, focusing on the person’s ability to understand and weigh information relevant to the decision in question;
When an assessment is carried out, the assessor should evaluate whether the person can understand the nature and consequences of the type or class of decisions under consideration as if such a decision were to be made now, in light of current choices;
This is compatible with the definition of “decision” in s.2 as including a “class of decisions”: the law envisages capacity assessments that address classes of decisions, not only discrete, single events.

This interpretation underpins the Court’s approach to declarations and DMR appointments that cover classes or domains of decisions (e.g. all healthcare decisions, all property/affairs decisions), even though every individual specific decision under those headings will occur at different times.

4.5 The role and scope of medical visitor assessments

4.5.1 The HSE’s arguments

The HSE advanced two principal reasons for limiting a medical visitor’s remit to specified matters:

Proportionality and necessity: Appointing a medical visitor and subjecting a vulnerable person to a global assessment is itself an “intervention”. If the only reason behind wardship/discharge proceedings is (for example) medication decisions, it was said to be unnecessary and disproportionate to assess their capacity outside that area.
Consequences for declarations and DMR orders: A global assessment would generate evidence across all aspects of personal welfare and property and affairs. Given s.55(1)’s mandatory nature, the court would then be “forced” to make declarations and DMR appointments across the entire breadth of those domains, which the HSE considered unnecessary and inconsistent with least-restrictive intervention.

4.5.2 The Court’s reasons for preferring broad functional assessments

Dignam J indicates that, where a medical visitor is required, they should ordinarily be asked to carry out a full functional capacity assessment. His reasons include:

Underlying concern about “forced” global orders is misplaced: As the Court has explained, the mere fact that evidence exists across multiple domains does not automatically compel an unbounded DMR appointment. The breadth of any DMR order must still be calibrated by necessity and proportionality, with power to exclude irrelevant sub-matters.
Prior knowledge of where capacity is in doubt is often incomplete: Limiting the assessment presupposes that the Court or parties can reliably identify in advance:
- all the domains in which capacity is in question; and
- all the domains in which decisions will soon be required.
In many cases – particularly where a person has complex needs – this will not be true.
Risk of under-protection if assessment is artificially narrow: If, for example, a person is referred to a medical visitor purely in relation to healthcare, but in truth also lacks capacity to manage finances, a limited assessment will:
- fail to identify this incapacity;
- leave the person without decision-support for finances upon discharge; and
- expose them to financial abuse or neglect, or necessitate future court applications.
That outcome is inconsistent with the Act’s protective and enabling purposes.
Systemic realities: With roughly 1,400 wards requiring discharge by April 2026, a principled and consistent approach is needed. Repeated piecemeal assessments in response to emerging issues would be inefficient and potentially inimical to the rights and welfare of wards.

The Court therefore endorses broad functional assessments by medical visitors – not as a means of pre-emptively stripping autonomy, but as a means of ensuring that all relevant domains of capacity and incapacity are identified, so that tailored and rights-respecting decision-support can be put in place upon discharge.

5. Impact and Future Significance

5.1 Transitional wardship discharges

This judgment will be highly influential in the High Court’s management of the large volume of wardship discharge applications up to April 2026. It provides clear guidance that:

on any s.55 review, the court must make capacity declarations for every matter for which evidence is available;
medical evidence should, ideally, be broad and functional, so that the court has a full picture of the person’s abilities across personal welfare and property/affairs;
where global incapacity is established, global domain-level declarations and DMR appointments (subject to evidence-based exclusions) are both permissible and, in some cases, necessary.

5.2 Practice of the HSE and other applicants

The HSE’s original strategy – to confine the legal process to the discrete problem that triggered wardship – is effectively disapproved. In practice:

Applicants should anticipate that the High Court will look beyond the single presenting issue (e.g. a medication dispute) and will consider the person’s overall decision-making capacity across relevant life domains;
Evidence should therefore be prepared and presented on a broad functional basis, not artificially narrowed to the original problem;
Where applicants believe that certain sub-matters are irrelevant and should be excluded from any DMR order, they should bring evidence to that effect rather than seeking to restrict the scope of the capacity assessment itself.

5.3 Guidance for guardians ad litem and the Decision Support Service

The GAL’s submissions – advocating for an appointment of a DMR commensurate with the full range of Mr V’s incapacity, rather than limited to currently required decisions – find strong support in the judgment. GALs in other cases can rely on this decision to:

argue against “minimalist” orders that leave persons without practical means to have decisions made for them in areas where capacity is lacking;
emphasise that appointing a DMR can enhance a person’s effective autonomy by allowing decisions to be made when and as needed, rather than freezing the system until a court can be approached.

For the DSS, the judgment emphasises:

the importance of training and guidance for DMRs on their s.8 obligations;
the need for oversight mechanisms (reporting, reviews, variation of orders) that respect the broad powers DMRs may hold in cases like Mr V’s, while guarding against overreach.

5.4 Circuit Court practice under Part 5

Although the case concerns the High Court’s wardship jurisdiction under s.55, it has implications for the Circuit Court’s handling of new Part 5 applications:

It underscores that capacity is decision- or domain-specific and must be assessed functionally;
However, it also recognises that, in some cases, functional assessments will legitimately support broader declarations and DMR appointments;
The Circuit Court is reminded that declarations and DMR orders must be tailored by necessity and proportionality, with explicit exclusions where appropriate.

Over time, we can expect a body of Circuit Court jurisprudence to develop around:

what constitutes “one or more than one decision” for declaration purposes (s.37(1));
how to structure DMR orders that are neither too narrow (requiring constant returns to court) nor too broad (unnecessarily invasive).

5.5 Systemic and policy implications

At a systemic level, HSE v VV confirms that the High Court will:

take seriously the statutory obligation to review, regularise and, where appropriate, replace wardship arrangements with tailored decision-support;
prioritise a rights-based, evidence-driven analysis over administrative convenience or cost-saving considerations;
be cautious about interpretations of the Act that would leave vulnerable persons without effective mechanisms for decision-making in domains where they lack capacity.

6. Complex Concepts Simplified

For readers less familiar with Irish capacity law, the following brief explanations may aid understanding.

6.1 Wardship and the Lunacy Regulation (Ireland) Act 1871

Wardship is a historic jurisdiction whereby the High Court could declare a person “of unsound mind and incapable of managing his person or property” and make decisions on their behalf, often via a “committee”.
The system was effectively “all or nothing”: once a person was taken into wardship, their legal capacity to make decisions was largely removed across the board.
The 2015 Act is designed to replace wardship with a modern, rights-based system. However, because many people were already wards, transitional provisions (like ss.54–56) are needed to manage their discharge.

6.2 Assisted Decision-Making (Capacity) Act 2015

The 2015 Act creates a framework to support people who may have difficulties making certain decisions, with various tiers of support:
- Decision-making assistance;
- Co-decision-making;
- Decision-making representation (DMR);
- Enduring powers of attorney;
- Advance healthcare directives.
It is underpinned by guiding principles in s.8, including presumption of capacity, least restrictive intervention, and respect for the person’s rights and will and preferences.

6.3 “Relevant person” and “person who lacks capacity”

A “relevant person” is someone whose capacity is in question or who is already subject to a decision-support arrangement.
A “person who lacks capacity” is a relevant person who is unable to make a decision in respect of the matter or matters in question, as defined by s.3 (e.g. inability to understand, retain, weigh or communicate information about the decision).

6.4 Functional assessment of capacity (s.3)

Capacity is assessed functionally, not by status or diagnosis. The question is: Can this person understand, retain, weigh and communicate information relevant to this decision (or class of decisions) at the time?
Capacity can vary over time and between different kinds of decisions. A person may be capable of deciding what to wear or whom to meet, but not capable of managing significant financial transactions.

6.5 “Personal welfare” vs “property and affairs”

Personal welfare includes matters such as:
- where the person lives (including living in a designated centre);
- participation in work, education, training, social activities;
- healthcare and healthcare research (with some exclusions);
- other matters relating to wellbeing.
Property and affairs includes:
- managing income, savings, property and debts;
- buying or selling property;
- running a business, dissolving a partnership;
- conducting legal proceedings;
- managing tax and social welfare entitlements.

6.6 Decision-making representative (DMR)

A DMR is a person appointed by the court to make one or more specified decisions on behalf of a relevant person who lacks capacity to make those decisions, even with co-decision-making assistance (s.38).
The DMR must:
- act in accordance with the guiding principles in s.8;
- take all practicable steps to ascertain and give effect to the relevant person’s will and preferences;
- act in good faith and in the person’s benefit.

6.7 Medical visitor

A medical visitor is a doctor appointed by the President of the High Court (under wardship practice) to assess a person’s mental state and capacity and report back to the court.
Under HC133, the court can, but need not, direct such an assessment; it may rely instead on assessments from other Registered Medical Practitioners where appropriate.

6.8 “Intervention” and guiding principles (s.8)

An “intervention” is any action taken under the Act in relation to a relevant person’s capacity and decision-making (e.g. capacity declarations, DMR appointments, court directions).
All interventions must:
- be necessary and proportionate;
- minimise restrictions on rights and freedom;
- respect dignity, bodily integrity, privacy, autonomy and financial control;
- be as limited in duration as practicable.

7. Conclusion

Health Service Executive v VV [2025] IEHC 714 is an important early High Court authority on how the Assisted Decision-Making (Capacity) Act 2015 operates in the context of discharging existing wards from the 1871 wardship system. The judgment establishes that:

The High Court is obliged under s.55(1) to make capacity declarations for all matters on which it has evidence, and cannot confine such declarations to domains where an immediate decision is required.
Where evidence shows global incapacity across “personal welfare” and “property and affairs”, the court may – and in cases like Mr V’s must – make a broad s.55(1)(b)(ii) declaration and appoint a DMR across those domains.
The scope of any DMR order remains governed by s.8’s principles of necessity and proportionality: specific sub-matters that are unlikely ever to arise should be excluded, but necessity is not confined to the existence of an immediate decision.
Appointment of a DMR in such circumstances is not a re-creation of wardship, because it is:
- based on functional, evidence-driven assessments of capacity;
- subject to strict guiding principles and oversight; and
- capable of fine-tuning by excluding irrelevant decision areas.
Medical visitors, when appointed, should ordinarily be asked to carry out broad functional capacity assessments rather than narrow, issue-limited inquiries, in order to ensure that all relevant domains of incapacity (and capacity) are identified before discharge.

In the broader legal context, the judgment deepens and operationalises the Court of Appeal’s analysis in Child and Family Agency v KK, reaffirming the centrality of functional assessments, individualised decision-support and the s.8 guiding principles. It offers clear, practical guidance at a critical moment, as Ireland moves to end wardship and fully implement the 2015 Act for all persons whose capacity is in question.