Burke v The Director Of The Decision Support Service [Mental Health Commission] (Approved)

Factual and Procedural Background

The Applicant sought judicial review of a decision of Company A (the Director of the Decision Support Service) that his complaint about his brothers, who had been appointed as attorneys under an Enduring Power of Attorney executed on 26 November 2021 and registered by Company B on 2 January 2024, was not well founded. The Donor (the Applicant's mother) is now deceased. The Applicant complained on 19 April 2024; Company A opened an investigation on 25 April 2024, issued a preliminary view that the complaint was not well founded on 18 September 2024, and emailed a final decision on 29 October 2024 (which the Applicant says landed in spam and which he received on 13 January 2025). The Applicant appealed to the Circuit Court, which dismissed the appeal on 28 July 2025 as moot on the basis that the Donor had died and no effective remedy remained. The Applicant then applied for judicial review in the High Court (filed 28 October 2025). Judge Gearty delivered judgment refusing leave for judicial review on 12 June 2026.

Legal Issues Presented

1. Whether the High Court should grant leave for judicial review of Company A's decision in circumstances where the Donor has died and the statutory remedy is unavailable (mootness and discretion to hear a moot case).
2. Whether s.76 of the Assisted Decision Making (Capacity) Act 2015 operates retrospectively (i.e., whether the court may make retrospective orders invalidating past acts of an attorney) or only prospectively.
3. Whether procedural complaints about Company A's use of a Code of Practice, alleged fettering of discretion, irrationality or insufficiency of reasons justify remittal or extension of time despite mootness.

Arguments of the Parties

Applicant's Arguments

• The Circuit Court's dismissal as moot left the legality of Company A's decision unresolved; the High Court should act as a last resort and judicial review is the "residual supervisory route."
• There is "clear utility" in quashing and remitting the decision even if it has no effect in this case, to correct a systematic error capable of repetition.
• Section 76(6) of the 2015 Act is not prospective and can operate retrospectively to undo past acts of attorneys, potentially rendering the attorneys' past acts void.
• Company A used the wrong Code of Practice (appearing to use a 2022 Code rather than a 2023 Code), fettered its discretion, acted irrationally, and gave insufficient reasons; these matters are of sufficient public/systemic importance to warrant proceeding and to justify an extension of time.

Respondent's Arguments

• The Respondent maintained that s.76 provides only prospective remedies and that the complaint was moot because the only available remedy (removal of attorneys) would be ineffective following the Donor's death.
• The Respondent's solicitors informed the Applicant that the only Code in use was the 2023 Code.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Gearty analysed the matter primarily through the lens of mootness and the statutory remedy available under s.76 of the 2015 Act. The court observed that s.76(6) permits a court, on an appeal, to determine that an attorney "shall no longer act"—language indicating a prospective remedy. The court applied the common-law presumption against retrospectivity (citing Hamilton v. Hamilton) to reject the Applicant's contention that s.76 operates retrospectively to invalidate past acts. The court further noted the jurisprudence that an appeal supersedes the original administrative decision (V.B. v Tusla), meaning that the Circuit Court decision was the operative decision for review; the Applicant had not challenged the Circuit Court decision on its merits. The court considered authorities on mootness (Lofinmakin; Right to Know; Kovacs) and concluded that, absent exceptional circumstances or overriding public importance, the court should decline to decide a moot question. The court found the Applicant's assertions regarding the wrong Code of Practice, fettering, irrationality and insufficient reasons unsupported by authority and, even if established, that the only remedy would be remittal to Company A to consider removal of the attorneys—a remedy that would be ineffective because the Donor is deceased. On this basis the court found the case moot and that there was no sufficient public-interest justification to hear a hypothetical case.

Holding and Implications

Holding: Leave to apply for judicial review is REFUSED.

Implications: The direct effect is that the Applicant's request for judicial review does not proceed. The court declined to decide the merits because the statutory remedy (prospective removal of attorneys) is no longer available following the Donor's death, and no exceptional public-interest ground justified hearing a moot case. The opinion records no new legal principle beyond application of established mootness and non-retrospectivity doctrines.