Lawyers at Fieldfisher have described a recent Circuit Court judgment as another milestone for legislation on assisted decision-making.

The judgment favoured the appointment of independent decision-making representatives (DMRs) over family members on behalf of a woman with significant care needs.

In an analysis on the firm’s website, the Fieldfisher lawyers say that Judge Joe O’Connor’s judgment contains a comprehensive exploration of the Assisted Decision-Making Capacity Act 2015, which became fully operational last year.

They say that the judgment explored, in particular, the tension between a family’s argument that they were best placed to promote the relevant person’s “will and preference”, and the HSE’s view that their conduct suggested otherwise.

‘Conflict of interest’

The case concerned a woman in her late 60s with significant care needs, who has a history of mental illness and suffers from dementia. She is cared for full-time in an acute HSE hospital.

Her brother solely manages her financial affairs, permanently resides at her home, and does not pay rent. The woman also pays a standing order of €25 to her brother on a weekly basis and, in June 2022, she contributed to the payment of his costs of a family holiday abroad.

The judge cited these factors as among issues that gave rise to “a serious conflict of interest” for the family.

The woman’s siblings accepted that, while she lacked capacity to make decisions on her long-term care, accommodation, medical treatment decisions and financial decisions, they believed that representatives from the family were best placed to be appointed as DMRs.

The HSE felt otherwise, and sought to appoint a DMR from a panel managed by the Decision Support Service (DSS).

Siblings ‘lacked insight’

The court decided that, while the siblings were devoted to their sister, they lacked insight into the issues that resulted in a conflict of interest.

In the court’s view, therefore, the family could not objectively deal with financial, medical, and care decisions on behalf of their sister.

The judge said that he had not “come to this decision lightly”, emphasising that it should not have an impact on the relationship between the siblings and their sister, nor affect their involvement in their sister’s life.

The Fieldfisher lawyers say that the judgment highlights the 2015 act’s functional approach to determining capacity, “whereby the interests of those with cognitive impairment are brought to the forefront”.

“It highlights the court’s delicate balancing of the issues, but ultimate reluctance to appoint members of a family where objective representation may be more appropriate, notwithstanding the good intentions of family members,” the Fieldfisher analysis concludes.