Capacity law causing practical difficulties: judge
Difficult legal and practical issues have arisen because of the Assisted Decision-Making (Capacity) Act 2015, High Court President Mr Justice David Barniville has said.
These issues may not have been fully appreciated when the legislation was being debated and enacted, he commented.
The High Court President’s remark was part of his observations on the Mental Health Act 2026, which has yet to be commenced, at the Mental Health & Capacity Law Conference at Wood Quay Venue (26 June).
“The shift away from wardship towards assisted decision-making arrangements was not simply a change on paper.
“It has involved a substantial and often complex body of work in practice, with each case requiring individual consideration, capacity assessment and the putting in place of appropriate supports,” he told the Curry & Hickey LPP event.
“As we have seen in both wardship and post-wardship cases, no two situations are the same, and the application of the law depends very closely on the individual circumstances.”
To date, over 729 wards have been discharged, with a further 1,035 discharge applications in progress.
One consequence of these changes, Justice Barniville said, had been a noticeable increase in applications brought under the High Court’s inherent jurisdiction, particularly in urgent or sensitive cases involving questions of care and treatment.
Inherent-jurisdiction proceedings
The number of new inherent-jurisdiction proceedings issued has risen from 218 in 2024 to 233 in 2025, with 118 cases already issued by May 2026.
This represents a 57% increase in the first quarter of 2026 compared with the same period in 2025.
“Mental health and capacity law is an area where legal principle and lived reality intersect very directly.
“The decisions made in this area affect individuals in deeply personal ways, almost always at times of acute vulnerability, and they raise difficult questions about autonomy, protection and the role of the State,” Mr Justice Barniville said.
Test of legislation
“The real test of any legislation is, of course, how it works in practice.
“That depends on everyone involved: clinicians, lawyers, tribunals and the courts. The practical realities they throw up in individual cases often illuminate the strengths and shortcomings of the legal framework in ways that cannot be discerned from the text of legislation alone.”