Factual and Procedural Background
The appeal concerned a High Court decision discharging the relevant person from wardship and appointing a decision-making representative (“DMR”) from the statutory panel under the Assisted Decision-Making (Capacity) Act 2015, as amended. The relevant person had complex cognitive issues, and her entitlement to the Act’s protections was undisputed. Her half-sister, the Appellant, wished to be appointed DMR for personal-welfare decisions and opposed the panel appointment. [1]
This was a concurring Supreme Court judgment agreeing that the appeal should succeed on its principal issue. It adopted the factual and statutory analysis in another judgment and addressed the constitutional principles governing the relevant person’s rights and family involvement. [2]
Legal Issues Presented
- To what extent must the High Court consider family members’ wishes when appointing a DMR under the 2015 Act? [1]
- How do constitutional protections of autonomy, dignity and family relationships inform the exercise of statutory powers and the suitability assessment under section 38(5)? [3][4][5][6]
- Did insufficient engagement with family members leave the High Court without material information necessary to assess the proposed arrangements? [7][8][9]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re KK [2024] IECA 242 |
The transformative character of the 2015 Act. |
Provided historical context for the replacement of the former wardship regime with a fundamentally different statutory framework. [10][11] |
| In re D [1987] IR 449 |
Wardship legislation should be interpreted consistently with constitutional protection of life, person and property. |
The judgment considered that this interpretive principle applied with even greater force to the 2015 Act. [12][13] |
| MK (Albania) v. Minister for Justice and Equality [2022] IESC 48, [2024] 2 IR 113 |
The Constitution contains no single general private-life guarantee equivalent to Article 8 of the European Convention on Human Rights. |
Despite that absence, the combined constitutional protections strongly safeguard individual choices about where and how to live. [13] |
| O'Leary v. Minister for Justice, Equality and Law Reform [2011] IEHC 256 |
Article 41’s recognition of the family as a moral institution encompasses relationships of love, support and care. |
The reasoning supported appropriate family participation in decision-making, while leaving the relevant person’s rights, dignity, will and preferences paramount. [14][15][16][4] |
| East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] IR 317 |
Statutory discretionary powers must be exercised constitutionally. |
The High Court must exercise its powers consistently with constitutional values, encouraging consultation and involvement of suitable family members without treating their views as decisive. [5] |
| HI and JK v. LM [2025] IEHC 674 |
Appointment of family DMRs may accord with the relevant person’s wishes, existing relationships, compatibility, capability and absence of conflicts. |
The judgment regarded this analysis as directly relevant, while explaining that family appointments are not appropriate in every case. [17][18][19][20] |
Court's Reasoning and Analysis
A person-centred statutory framework
The judgment contrasted the former wardship regime’s “all or nothing” transfer of decision-making authority with the 2015 Act’s emphasis on the individual’s voice, wishes, autonomy and dignity. The Act was a fresh legislative approach, not merely a restatement of the former law. [21][3][22]
That approach gives practical effect to constitutional protections of dignity, person, property, association and family life. Section 8(6)(b) expressly requires interventions to respect dignity, bodily integrity, privacy, autonomy and control over financial affairs and property. [3][23][22]
Family involvement is important but not overriding
Article 41’s recognition of the family as a moral institution supports preserving relationships with suitable relatives who are willing and able to assist. Nevertheless, the relevant person’s rights, dignity and known will and preferences remain paramount. [14][4]
Section 38(5) reflects these principles by requiring consideration of the relevant person’s known will and preferences, preservation of family relationships, the proposed representative’s relationship and compatibility with the person, ability to perform the functions, and any conflict of interest. [6][24][25][26][27][28][29]
Family involvement is not an automatic entitlement. Unsuitability, unrealistic proposals, self-interest, estrangement or abuse may make participation or appointment inappropriate; family views are not necessarily decisive. [5][20]
Why the assessment was incomplete
The solicitor representing the relevant person and the ward’s committee understood their roles too narrowly. The solicitor’s task was not simply to transmit the committee’s instructions: acting with those instructions, the solicitor should have obtained further information from and engaged with close relatives, particularly the Appellant and the relevant person’s father. The judgment expressly qualified this observation because the relevant professional and committee obligations had not previously been judicially clarified. [7]
This limited engagement confined the High Court’s assessment of both the DMR appointment and the relevant person’s living arrangements. Her clear, although not entirely consistent, wish to live with her father received insufficient attention. Consequently, relevant factors were neither fully available nor properly weighed. [8]
The omission of material information about relatives’ willingness and suitability to assist therefore left the section 38(5) assessment incomplete. The statutory process, read consistently with constitutional protections, required reconsideration on a properly informed basis. [30][9]
Holding and Implications
The concurring judgment agreed that the appeal should be allowed and the matter remitted to the High Court for reconsideration. The High Court judgment could not stand because material information concerning family involvement had not been placed before it. [30][9]
The direct consequence was reconsideration of the arrangements, not appointment of the Appellant as DMR. Appropriate family participation must inform that assessment, but the relevant person’s autonomy, dignity and wishes remain paramount. [31][32][9]