Date: Jan 24, 2026

Primacy of Will-and-Preferences and Least-Restrictive Support: Independent Co-Decision-Maker Preferred over a DMR on a s.55 Discharge Application

1. Introduction

In the Matter of D [A Ward of Court] ([2026] IEHC 109) is an ex tempore ruling of Mr Justice Mark Heslin in the High Court (Wards of Court) delivered on 23 January 2026. The applicant, Mr D, sought discharge from wardship by invoking the modern statutory framework under the Assisted Decision-Making (Capacity) Act 2015 (as amended) (“the 2015 Act”), specifically an application pursuant to section 55.

The central dispute was not whether Mr D should remain a ward in the older wardship sense, but what form of decision-making support (if any) was justified under the 2015 Act: the applicant sought support via a co-decision-maker (CDM)—preferably an independent person—whereas his mother and brother (the “notice parties”) argued for the appointment of a decision-making representative (DMR) and proposed that one of them should perform that role.

The case therefore raised a recurring post-2015 Act tension: how to balance family concerns and protective instincts against the Act’s emphasis on presumption of capacity, practicable supports, tolerance of “unwise decisions”, and the obligation to adopt the least restrictive intervention, while giving central weight to the person’s will and preferences.

2. Summary of the Judgment

The Court had the benefit of two consultant psychiatrist reports: the Court Medical Visitor (December 2024) concluded Mr D lacked capacity for personal welfare and property/affairs decisions unless supported by a suitable CDM; a second psychiatrist (June 2025) found Mr D did not lack capacity but nonetheless recommended decision-making assistance.
Neither psychiatrist recommended the appointment of a DMR. The notice parties sought a third capacity assessment; the Court refused, noting the absence of any clinical indication for it.
The Court emphasised the 2015 Act’s guiding principles in section 8, including the presumption of capacity, the duty to take practical steps to support decision-making, the principle that an “unwise” decision does not equate to incapacity, and the requirement to minimise restrictions on rights and freedom of action.
The Court gave weight to the applicant’s clearly expressed position: he accepted the Court Medical Visitor’s opinion, consented to CDM support, and wanted an independent CDM.
While acknowledging the good-faith protective motivations of the mother and brother (and considering affidavits from them and from the applicant’s GP), the Court preferred the functional psychiatric capacity evidence and the least-restrictive, autonomy-respecting approach.
The Court made a declaration under s.55(1)(b)(i) that Mr D lacks capacity in the relevant areas unless assisted by a suitable CDM, and adjourned final orders to allow time for registration of a co-decision-making agreement under s.55(3).

3. Analysis

3.1 Precedents Cited

No prior judicial decisions were cited by name in the ruling. The Court’s analysis is instead anchored in statutory principles and in the transition from the historic wardship framework.

The Court explicitly contrasted the older wardship approach (referencing the test “set out in the 1871 Act”) with the 2015 Act’s model. This is not a citation of case precedent, but it functions as an important interpretive backdrop: the Court treats the 2015 Act as a deliberate move away from a broad “best interests” substitution model towards a rights-based, support-oriented and will-and-preferences framework.

3.2 Legal Reasoning

The ruling is structured around a sequence of determinations that together amount to a practical template for s.55 discharge applications where family members seek a more intrusive arrangement:

Capacity evidence is to be approached functionally and clinically. The Court relied on two consultant psychiatrist assessments (including the Court Medical Visitor). It rejected the notion that family disagreement, without clinical endorsement, warranted escalation to a DMR or the ordering of a third assessment. A key point is the Court’s rejection of “time spent” criticism where no psychiatrist signalled that the assessment was inadequate for its purpose.
Section 8 principles are not aspirational; they are operative constraints on “protective” outcomes. The Court treated the statutory presumption of capacity, the duty to take practical steps, and the “unwise decision” principle as reasons why the notice parties’ sincerely held views could not determine the outcome. In particular, the Court stressed that an intervention (including a DMR) must minimise restrictions on rights and freedom of action.
Will and preferences are central on a discharge application under the 2015 Act. The applicant’s position was “crystal clear”: he consented to CDM support and opposed a DMR. The Court treated that stance as aligned with independent psychiatric evidence, strengthening the case for the least restrictive measure.
DMR is treated as a more restrictive “intervention” than CDM support, demanding stronger justification. The Court’s reasoning implicitly grades interventions: if CDM support can address the functional difficulties identified, then a DMR (with its greater substitution element) is not justified, especially where neither psychiatrist recommends it.
Independence of the supporter can be integral to minimising restriction and conflict. The Court accepted evidence from the Court Medical Visitor suggesting a family member would not carry out the CDM role, and it viewed an independent CDM as optimal both to respect the applicant’s preferences and to avoid intensifying family discord—without making adverse findings against any family member.
Comparative weight of evidence: specialist functional assessments outweigh non-specialist, non-recent views. The GP’s evidence was considered but discounted relative to the psychiatrists because it was not based on a recent clinical assessment nor a formal functional test of decision-making capacity, and because psychiatry is the relevant specialty for the capacity assessments at issue.
Outcome framed as conditional incapacity with support, not blanket incapacity. The declaration under s.55(1)(b)(i) is carefully expressed: lack of capacity exists unless the assistance of a suitable CDM is made available. This reflects the Act’s support paradigm.

3.3 Impact

The decision is significant in illustrating how the High Court is likely to manage contested family dynamics under the 2015 Act:

Higher threshold for DMR where CDM support is clinically supported: Where expert evidence supports decision-making with assistance, family pressure for a DMR may fail absent compelling functional justification.
Reduced scope for “protective veto” by relatives: The ruling reinforces that family views, even when sincere and based on long familiarity, are not determinative and cannot override s.8 principles or the person’s will and preferences.
Practical discouragement of repeated assessments as a litigation tactic: The refusal to direct a third assessment signals that additional reports are not automatic where existing specialist evidence is coherent and sufficient.
Independent supporters as a conflict-management tool: The Court’s emphasis on independence suggests a pathway for future cases where family conflict risks undermining the support arrangement or the person’s autonomy.
Continued recalibration from wardship to 2015 Act norms: By contrasting the historic “best interests” emphasis with the Act’s recognition of “unwise decisions,” the ruling contributes to the emerging jurisprudential culture: autonomy and least-restrictive supports are not secondary to protective instincts.

4. Complex Concepts Simplified

Wardship: A historic court jurisdiction where a person found to lack capacity could be made a “ward of court,” with the Court making decisions on their behalf. The ruling notes the shift away from this model under the 2015 Act.
Decision-Making Representative (DMR): A more intrusive arrangement where a representative is appointed to make certain decisions for the person. Because it is restrictive, it must be justified as necessary and proportionate.
Co-Decision-Maker (CDM): A support mechanism where the person makes decisions jointly with a co-decision-maker. It is generally less restrictive than a DMR because it preserves the person’s participation and agency.
Functional capacity assessment: An assessment focused on the person’s ability to make specific decisions (e.g., welfare or financial decisions), rather than a broad label based only on diagnosis or status.
“Unwise decision” principle (s.8): The law recognises that people may make choices others consider imprudent; that fact alone does not prove incapacity.
Least restrictive intervention (s.8): If any court intervention is needed, it must minimise restrictions on the person’s rights and freedom of action—pushing decision-makers toward supports rather than substitution.
Will and preferences: The person’s own present (and where relevant, past) wishes are central. The Court must give effect to them so far as practicable and ascertainable, rather than defaulting to what others think is “best.”

5. Conclusion

[2026] IEHC 109 demonstrates a clear application of the 2015 Act’s rights-based architecture: the Court prioritised specialist functional evidence, the applicant’s will and preferences, and the least-restrictive form of assistance. It declined to escalate to a DMR in the absence of psychiatric support for that measure, despite family concerns and a GP recommendation. The ruling’s practical legacy is its insistence that protective intentions must yield to statutory principles of autonomy, support, and proportionality—often achieved, as here, through an independent co-decision-making arrangement rather than a substitute decision-maker.