Capacity Act set ‘impossible’ deadlines – Barniville

The Assisted Decision-Making (Capacity) Act 2015 set a highly challenging time frame which, for a host of reasons, proved simply incapable of being met, the President of the High Court has said.

Mr Justice Barniville was speaking at The Assisted Decision-Making (Capacity) Act – Three years on event hosted by the Dublin Solicitors’ Bar Association (DSBA) and held at the offices of Byrne Wallace LLP, Dublin (12 May).

The event was opened by DSBA President, Paul Ryan, and chaired by Katharine Kelleher (partner at CKT).

The speakers were:

• Mr Justice David Barniville, President of the High Court,
• Áine Hynes SC, St John Solicitors,
• Áine Flynn, director of Decision Support Service,
• David Hickey, partner at Curry & Hickey Solicitors LLP,
• Marie-Claire Butler, General Solicitor for Minors and Wards of Court,
• Patrick McClean, partner Byrne Wallace LLP,
• Olive Doyle, partner Byrne Wallace LLP.

Under section 54 (2) the act placed an absolute obligation on the High Court to review and discharge every adult from wardship within three years of the commencement of the act – 26 April 2026.

This proved impossible because the act required not only legal reform, but a large-scale systemic transition. 

Several elements were either unforeseen, or underestimated. 

These include:

• ‘Strong reluctance’ of wards, families and committees to bring discharge applications,
• Volume and complexity of reviews,
• Procedural burdens, and
• Practical realities of capacity assessments and support arrangements including costs and fund management.

Substantial progress was made via multi-agency in-person events for practitioners, the obtention of legal aid certificates for nearly 1,000 wards, with solicitors assigned and the active management of all remaining cases.

Adult discharges 

Adult discharges increased as a result from 18 in 2023 to 442 so far in 2026, a cumulative total of 737.

The breakdown is:

• ~570-580 with a DMR appointed,
• ~100 with a co-decision maker,
• ~50 with full capacity requiring no support.

The original legislation had no provision for extending the deadline or addressing the legal status of undischarged wards after April 2026.

“This created a real and pressing risk of legal uncertainty for those individuals and for those responsible for their care,” Mr Justice Barniville said.

Neither did the timeframe allow for appeals of High Court wardship decisions (two appeals are pending).

The Assisted Decision-Making Capacity (Amendment) Act 2026 addressed this by allowing the High Court to extend time on a case-by-case basis, only where there is ‘good reason’ and it is ‘in the interests of justice’, to a maximum of 18 months.

All cases resolved by 2027

All cases are to be resolved by 25 October 2027.

Mr Justice Barniville said, “All cases not discharged by the end of March 2026 were listed during the Easter vacation.

In the final weeks leading up to the end of April deadline, 1210 cases remain live he added.

Mr Justice Barniville concluded by expressing thanks to all the legal professionals and organisations who helped with the process, without whom “we would not have been in a position to proceed as we have done”. 

Áine Hynes SC, (St John Solicitors LLP) chair of Law Society Task Force on Mental Health and Capacity Law, explained that there have been some 1,700 Decision-Making Representatives (DMR) appointments in the Circuit Court.

Act approporiately

She observed that family members are increasingly being considered suitable appointees where they can demonstrate their ability to act appropriately.

She also noted the practical challenges faced by panel DMRs, particularly where they enter cases without the level of personal or financial background information available to relatives.

No extension of solicitor functions

The SC flagged that practitioners acting as DMRs, particularly solicitors, must distinguish between their professional role and their statutory function as DMR, as the appointment does not automatically extend ordinary solicitor functions.

Less restrictive supports, such as decision-making assistance agreements and co-decision-making agreements, should always be considered before a Decision-Making Representation Order application.

But, where a DMRO is sought, it should be carefully tailored, issue-specific and proportionate, with clear identification of the decisions requiring support.

'Will and preferences'

Áine Hynes expressed her view that the ex parte stage is leaving vulnerable people unable to access funds or pay for care.

Her other takeaways for practitioners included:

• Practitioners should not assume that HSE must bring all Part 5 applications,
• Template documents are available for Circuit Court applications,
• The ‘will and preferences’ principle now sits at the centre of the jurisdiction and represents a substantial departure from the older “best interests” model,
• There is no statutory requirement for an advocacy report in every review application, although courts may sometimes welcome one depending on the circumstances,
• Under the legislation, psychologists cannot carry out capacity assessments,
• The participation and voice of the relevant person remain central throughout Part 5 proceedings and review applications, with section 129 continuing to underpin the obligation to facilitate the person’s participation in the process,
• Review mechanisms under the act are flexible and can be invoked before scheduled review dates where circumstances materially change,
• Deprivation of liberty safeguards remain a gap. Courts are using inherent jurisdiction in the meantime – practitioners should be aware this is a workaround, not a solution,
• In the EPA process practitioners should not set up or manage email addresses or telephone numbers for clients during DSS verification,
• Practitioners should expect increasing appellate guidance as challenges emerge concerning:
  • Appointment of DMRs,
  • Suitability of family members,
  • Scope of orders, and
  • Issues surrounding independent representation.