- Bookmark
- Share
- CaseIQ
Health Service Executive v MM (A Person Lacking Capacity Not So Found Represented By Her Guardian Ad Litem) and Anor (Approved)
Factual and Procedural Background
Company A brought proceedings concerning the validity and applicability of a Patient’s advance healthcare directive, her capacity to make it, Company A’s authority to treat her physical conditions, and the court’s jurisdiction to permit treatment including restraint or sedation if required. [Para 28]
The Patient had bipolar disorder and had previously been hospitalised in 2006 and 2009; she later reduced and then stopped psychiatric medication against medical advice. [Para 36][Para 37] On 6 November 2025, she executed an advance healthcare directive refusing all psychiatric medication in all circumstances, including where her life was at risk. [Para 38][Para 60][Para 63]
After an involuntary admission on 24 December 2025, she was described as acutely manic and in need of inpatient treatment, but no psychiatric medication was administered because of the directive. [Para 41][Para 42][Para 48] She also had diabetes, hypertension, and high cholesterol, was not taking medication for those conditions, and would not consent to diabetes monitoring. [Para 48]
Company A issued proceedings on 22 January 2026, a Guardian was appointed, and interlocutory orders later permitted treatment, blood tests, glucose monitoring, restraint, and sedation if necessary. [Para 50][Para 52] The matter was heard in March 2026, and the Patient was later discharged before judgment, though the court still delivered reasons on the live issues. [Para 53][Para 104][Para 105]
Legal Issues Presented
- Whether the High Court had jurisdiction under section 89(2) of the 2015 Act, which depended on whether the application involved “life-sustaining treatment.” [Para 95][Para 96][Para 97][Para 99][Para 100][Para 101]
- Whether the advance healthcare directive was valid, including whether the Patient lacked capacity when she executed it. [Para 97][Para 98][Para 112][Para 113]
- If valid, whether the directive was applicable to psychiatric treatment and, separately, to treatment for physical health conditions. [Para 99][Para 102][Para 109][Para 110]
- Whether Company A had authority to treat the Patient’s physical health conditions under the Mental Health Act 2001, or alternatively under the court’s inherent jurisdiction. [Para 100][Para 109][Para 110]
- Whether detention could continue if psychiatric medication could not be administered. [Para 101][Para 110][Para 111]
Arguments of the Parties
Company A's Arguments
- The psychiatric medication was life-sustaining because untreated mania, combined with the Patient’s physical conditions and family history, created a real risk of cardiovascular event and death. [Para 176][Para 177][Para 292][Para 298]
- The directive was invalid because the Patient lacked capacity when she made it. [Para 97][Para 98]
- If the directive were valid, the court should make directions on applicability and should permit treatment, restraint, and sedation for her physical conditions if necessary. [Para 78][Para 80][Para 82][Para 90][Para 91]
Guardian's Arguments
- The phrase “life-sustaining treatment” should be construed narrowly in light of the Act’s autonomy-based scheme and the default jurisdiction of the Circuit Court. [Para 179][Para 180][Para 196][Para 197][Para 218][Para 219]
- Applicability should be determined before validity, and the fifth issue could be left for another hearing if necessary. [Para 102][Para 103]
The Commission's Arguments
- The meaning of “life-sustaining treatment” depended on context, ordinary meaning, temporal proximity, and evidence of real risk; the risk of death had to be more than vague or remote. [Para 181][Para 182][Para 183][Para 184][Para 185][Para 186][Para 188]
- The Commission later accepted that requiring certainty of fatal consequences was probably too strong, but it maintained that the risk still had to be real and proximate. [Para 247][Para 248]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Child and Family Agency v KK [2024] IECA 242 | Description of the 2015 Act as a fundamental change in the legal regime for vulnerable persons. | Used to underline the significance of the statutory scheme governing advance healthcare directives. [Para 29] |
| Governor of a Prison v XY [2023] IEHC 361 | Prior judgment on advance healthcare directives and the in camera context. | Served as the only other written authority on the relevant provisions and as support for hearing the proceedings in camera. [Para 30][Para 31] |
| Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43 | Statutory interpretation requires attention to language, context, purpose, and the statute as a whole. | Relied on as part of the interpretive framework for construing “life-sustaining treatment.” [Para 192][Para 194] |
| A, B and C v Minister for Foreign Affairs and Trade [2023] IESC 10 | Reaffirmation of the same interpretive approach. | Used alongside Heather Hill to explain how the court should construe the statutory language. [Para 192][Para 194] |
| In the matter of JJ [2022] 3 IR 1 | Example of interventions treated as life-sustaining, including CPR and invasive treatment. | Cited by the Guardian to show the instant case was different in nature. [Para 180] |
| Re a Ward of Court (withholding of medical treatment) (No. 2) [1996] 2 IR 79 | Artificial nutrition described as life-sustaining treatment. | Cited as part of the Guardian’s comparative authorities on life-sustaining treatment. [Para 180] |
| Re SR [2012] 1 IR 305 | Intubation and invasive ventilation treated as life-sustaining. | Used by the Guardian to contrast those interventions with psychiatric medication. [Para 180] |
| HSE v JM [2018] 1 IR 688 | Ventilation, vasopressor support, resuscitation, and invasive monitoring treated as life-sustaining. | Listed as a comparator authority, but the court noted those cases did not decide the meaning of the term. [Para 180][Para 258] |
| In the matter of SM [2025] IEHC 717 | Ventilator, nasogastric feeding, and cardiovascular supports treated as life-sustaining. | Also used only as a comparator; the court emphasised those cases were not determinative of the statutory meaning. [Para 180][Para 258] |
| Duffy v. McGee [2022] IECA 254 | Expert evidence must be understandable and sufficiently reasoned. | Used when assessing the quality of the psychiatric evidence on capacity. [Para 273][Para 275][Para 456] |
| Donegal Investment Group Ltd. v. Danbywiske [2017] IESC 14, [2019] 1 I.R. 150 | Even uncontroverted expert opinion need not be accepted by the court. | Supported the court’s cautious approach to expert evidence on capacity. [Para 274] |
| Flynn v. Bus Éireann [2012] IEHC 398 | Experts must explain the basis of their opinions so the court can engage with them. | Quoted to justify close scrutiny of the psychiatric evidence. [Para 276] |
| Fitzpatrick v FK [2009] 2 IR 7 | Capacity assessments must take account of the gravity of the decision and its consequences. | Relied on to reinforce that refusal of life-sustaining treatment requires a high degree of understanding. [Para 366][Para 367][Para 373] |
| Governor of X Prison v PMcD [2015] IEHC 259 | Capacity depends on the nature, gravity, and complexity of the decision; refusal of treatment requires a high degree of understanding. | Used with Fitzpatrick to explain why the capacity inquiry was demanding in this case. [Para 368][Para 372][Para 373] |
| X.Y., A Minor v. H.S.E. [2013] 1 I.L.R.M. 305 | Distinction between consenting to treatment and refusing treatment. | Relied on as part of the pre-2015 capacity analysis informing the court’s reasoning. [Para 370][Para 372] |
| C.D and B.B [2023] IEHC 204 | Principles governing expert evidence. | Used by analogy to evaluate the psychiatric reports and to stress the need for reasoning. [Para 272][Para 277][Para 456] |
| DPP for Northern Ireland v Lynch [1975] AC 653 | Meaning of “voluntariness.” | Cited when the court rejected the argument that lack of capacity could be folded into voluntariness. [Para 345][Para 346] |
| HSE v MX [2012] 1 IR 81 | “Treatment” in the Mental Health Act 2001 can include ancillary measures necessary to administer treatment for a mental disorder, but not measures entirely unrelated to it. | Discussed in the physical-treatment section, but treated cautiously and not as conclusive on the broader scope of “treatment.” [Para 477][Para 478][Para 486][Para 496] |
| HSE v VF [2014] 3 IR 305 | Section 22 can permit transfer for treatment and detention for so long as necessary for that purpose. | Also discussed cautiously; the court said it did not conclusively settle whether non-mental-health treatment is included. [Para 477][Para 500][Para 501][Para 513] |
| HSE v HH [2024] IEHC 564 | Proceeding on the basis that “treatment” in the 2001 Act means interventions related to ameliorating the mental disorder. | Cited as another case approached on that basis, but not as a final answer to the question. [Para 510][Para 512] |
Court's Reasoning and Analysis
The court held that there is no exhaustive statutory definition of “life-sustaining treatment,” so the phrase must be construed by reference to the language, context, purpose, and statutory setting of the 2015 Act, including the Director’s Code of Practice. [Para 169][Para 170][Para 172][Para 191][Para 194][Para 225][Para 235][Para 240]
The judge rejected both an unduly narrow and an automatic broad approach. [Para 196][Para 197][Para 198] He accepted that autonomy is central to the Act, but said the constitutional right to life and the structure of section 89 require caution so that treatment is not too readily classified as life-sustaining. [Para 200][Para 201][Para 202][Para 218][Para 219][Para 223][Para 225]
He held that treatment is life-sustaining only where it is given for the purpose of sustaining life, where non-provision creates a real, non-vague risk of death, and where that risk is immediate, proximate, or arises within a very short time. [Para 260][Para 263][Para 264][Para 265][Para 266][Para 267] He also rejected the submission that any directive stating that refusal applies even if life is at risk automatically involves life-sustaining treatment, because that would undermine the Act’s distinction between ordinary treatment and life-sustaining treatment and would defeat the default Circuit Court jurisdiction. [Para 255][Para 256][Para 257][Para 258][Para 219]
Applying those principles, the court accepted Dr. D’s evidence that untreated mania significantly increases cardiovascular risk and is associated with premature death, and that the Patient’s diabetes, hypertension, cholesterol, and family history added to that risk. [Para 292][Para 293][Para 294][Para 297][Para 298] The judge concluded that, in the actual circumstances of this case, psychiatric medication was life-sustaining treatment because immediate treatment was needed to reduce a real risk of a cardiovascular event and death. [Para 306][Para 307][Para 308][Para 309][Para 310][Para 311][Para 312][Para 313]
On procedure, the judge held that section 89(3) is self-operating, but where interim relief is sought the correct test is analogous to a mandatory interlocutory injunction: the applicant must show a strong case on the merits. [Para 317][Para 318][Para 319][Para 320][Para 321][Para 322]
On validity, the court rejected a narrow reading of section 85 and held that lack of capacity is a basis on which an advance healthcare directive may be found invalid under section 89. [Para 339][Para 340][Para 341][Para 350][Para 351][Para 352] The judge said the contrary interpretation would create a statutory lacuna and leave a person who lacked capacity without protection while a challenge was pending. [Para 342][Para 343][Para 344][Para 353][Para 354][Para 355]
In assessing capacity, the court applied the statutory presumption of capacity and the functional test in section 3, with the burden on Company A to rebut the presumption. [Para 358][Para 359][Para 360][Para 361][Para 362][Para 363][Para 365] The court considered the witness evidence from the friends who signed the directive, the parents’ evidence of deterioration and grandiosity, and the psychiatric evidence from Dr. D and Dr. Hunt. [Para 436][Para 437][Para 438][Para 439][Para 440][Para 441][Para 442][Para 443][Para 446][Para 447][Para 448][Para 449][Para 450][Para 451][Para 452][Para 453][Para 454][Para 455]
The judge gave limited weight to Dr. Hunt’s report because it contained a factual error and little reasoning, but accepted Dr. D’s opinion that the Patient likely could not understand or use and weigh the information relevant to the directive. [Para 449][Para 450][Para 451][Para 456][Para 457] He therefore held that the presumption of capacity was rebutted and that the Patient lacked capacity when she made the directive. [Para 432][Para 433][Para 455][Para 456]
As to physical-health treatment, the judge said the statutory position under the Mental Health Act 2001 was not clear enough to decide conclusively on the papers before him, and he left the broader question for another case. [Para 462][Para 463][Para 477][Para 502][Para 515][Para 516]
Holding and Implications
DECLARATION MADE: the advance healthcare directive dated 6 November 2025 is not valid. [Para 518][Para 519][Para 520][Para 521][Para 522][Para 523]
The court also held that, on the facts before it, the psychiatric medication was life-sustaining treatment and so the High Court had jurisdiction under section 89(2). [Para 519][Para 520][Para 313] The judgment did not determine applicability, the physical-treatment issue, or continued detention because those matters were no longer live after discharge. [Para 330][Para 331][Para 462][Para 463][Para 111]
The broader implication is that the judgment gives structured guidance on “life-sustaining treatment” and on capacity challenges to advance healthcare directives, but it does not finally resolve the separate statutory questions left open. [Para 265][Para 268][Para 322][Para 515][Para 516]
Alert