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51
THE ASSISTED DECISIONMAKING CAPACITY ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
THE ASSISTED DECISIONMAKING CAPACITY ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
2.6 Liberty Rights and Impaired Capacity
Mary Donnelly and Shaun O’Keee
It is a fundamental constitutional principle that no citizen may be deprived
of their personal liberty except in accordance with the law. However, it is
common practice that some people are not free to leave health or social care
facilities, oen because sta feel they lack the capacity to make this decision
and that it is not safe, or not otherwise in their best interests, to do so. Since
the decision of the Supreme Court in AC v Cork University Hospital [2019]
IESC 73, we have a much clearer indication of what is (and is not) legally
permissible. is greater clarity reveals the inadequacy of the current legal
framework and the urgent need for the Government to progress promised
legislation to provide better protection for liberty rights of people admitted
to hospitals, nursing homes and other residential care facilities. is chapter
explores the treatment of the right to liberty in the decision in AC v CUH,
examines the implications of this decision for health and social care practices
and reiterates the need for urgent action by Government.
THE DECISION IN AC v CUH
Mrs C, who was 93 years old at the time, was admitted to Cork University
Hospital (CUH) in 2016 aer breaking both hips. She was additionally
diagnosed with dementia of moderate severity. Members of her family wanted
to take her home, but this was refused by sta in the hospital, who believed that
she lacked capacity to make the decision to leave and that her care needs would
best be met in a nursing home setting. Mrs C signed a letter of self-discharge.
However, when her son came to collect her, he was prevented from removing
her from hospital. Subsequently, Mrs C was made a Ward of Court. AC, Mrs
C’s son, argued that his mother had been unlawfully detained in the CUH.
e Supreme Court found that nobody, regardless of whether or not they have
capacity to make a decision to leave hospital, can be deprived of their personal
liberty except in accordance with the law (para. 394). is is the case even if
the detention is believed to be in the best interests of the person (para. 394).
A hospital does not have a general legal power to detain or to decide how the
right to liberty should be balanced against other rights and the well-being of
the person. However, the doctrine of necessity applies where there is a need to
take action for someone who lacks capacity to make a decision to leave and the
action is one that a reasonable person would take in the best interests of the
person in the circumstances in question (para. 349). e Supreme Court found
that the doctrine provides legal justication for the short-term detention of a
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THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
person in their own interest. However, since the doctrine of necessity is designed only to
deal with urgent situations, it does not have sucient safeguards and so can only be relied
on for temporary justication of detention (para. 349).
IMPLICATIONS OF THE DECISION IN AC V CUH
In light of this decision, it is possible to provide answers to several fundamental questions
about the nature of detention (although much more dicult to solve the surrounding
practical dilemmas).
When is someone being detained?
In many cases, it is straightforward to determine that detention is occurring: the person
indicates verbally or by their actions that they wish to leave a hospital or institution and
isn’t allowed to do so. However, it is not always necessary that the person is making active
physical attempts to leave. If someone would not be free to leave if they tried or if a third
party were to try to take them out, they are detained. Similarly, someone who is told not
to leave and complies with this is not in fact free to leave and is therefore detained. Also,
whether someone is detained and deprived of their liberty does not depend on whether or
not they may lack capacity to make the decision to leave, nor on whether or not leaving
seems to sta a wise or safe decision.
Being free to leave a hospital or other institution is also not the same as being able to leave.
Some patients, because of physical or cognitive diculties, may be physically unable to
leave without physical or practical assistance, including, for example, arranging transport
or providing a wheelchair. If sta refuse to provide such assistance – that is, any help that
would normally be provided to someone who was being discharged – that person is not free
to leave. It is not enough to say: ‘You are free to walk out that door or to arrange your own
transport’ if one knows the person can’t do so or to say: ‘you are free to go if your family will
take you’ if one knows that this will not happen.
Some measures used in hospitals that may suggest detention include physical restraint, use
of sedation, locks on ward doors, and continuous monitoring and supervision (for example,
one-to-one care). However, these measures do not necessarily mean that a person is being
deprived of their liberty. For example, locked doors on wards may be present for security
reasons or aimed at other patients: the question to be asked is: ‘Would sta unlock the door
if he or she asked or implied that they wished to leave’? If not, he or she cannot be said to
be free to leave.
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THE ASSISTED DECISIONMAKING CAPACITY ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
What about delayed discharge?
Sometimes, the person may be clear that their ultimate goal is discharge home but
acknowledges that this will require planning and appropriate discharge arrangements, such
as a care package or home modications. Making such arrangements can take a frustratingly
long time, but as long as the person agrees to remain in hospital while they are being made,
there is no detention provided that:
1. If the person were, for example, to lose patience with the delays and insist on
immediate discharge, they would be free to go, and
2. Genuine eorts are being made in good faith by sta to facilitate discharge in
accordance with the person’s wishes.
What should be done when someone indicates a wish to leave?
When someone indicates a wish to leave a hospital or other institution, the rst question to
be asked is whether the person truly wishes to leave or whether they are being pressurised
to do so by a third party (AC v CUH, para. 392). If satised that there is a genuine wish
to leave and that the person has the capacity to make this decision, all the hospital may do
is try to persuade the person to stay. However, if the hospital is concerned that the person
may lack the capacity to make the decision to leave, it must arrange for an assessment of the
person’s capacity. is assessment should be conducted by suitably qualied professionals.
e general principles of a functional approach to capacity should be respected, including
starting with a presumption of capacity and seeking to support the person to make their
own decision (including involving an advocate where appropriate). e information that the
person needs to retain and use and weigh in making a decision to leave hospital will include
the risks AND benets of all options. For example, the risks of a decision to go home may
include safety concerns (falls, accidents, wandering), diculty with daily activities and
burden on family and carers; the benets may be that independence is valued over safety
and that the person may be happier at home.
If the person is judged to lack capacity to make the decision to leave and they have clearly
indicated a consistent and genuine wish to leave, a legal process must be followed. Until
the 2015 Act comes into eect, the only available process is an application for admission to
wardship. is is most unfortunate as, for reasons set out throughout this book, wardship
is not an appropriate legal mechanism in a contemporary context. Any application for
admission to wardship must happen ‘within a reasonably short time’ of the person’s
indication of a wish to leave (para. 351). Where this step is taken, it is essential that the
person’s own voice is heard and that they have independent representation or legal assistance
during the process. e person and their representative must have access to all reports
relevant to the case. is includes medical reports as well as, for example, correspondence
from others outlining safety concerns about the person.
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THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
Arranging for capacity assessments and reports and making a court application can take
some time, and a brief detention while this is arranged is lawful in urgent situations under
the doctrine of necessity. However, depriving someone of their liberty is such a serious
matter that there must be no unreasonable delay in seeking the assistance of the Court.
Some circumstances may create diculty for sta in knowing when they need to apply to
court. For someone with uctuating capacity, there may be a reasonable expectation that
the person’s cognitive status may improve and that they may regain capacity. is is oen
the case in someone with delirium due to acute illness or those in intensive care units. In
such circumstances, it may be reasonable to wait for an improvement before making the
nal decision to involve the court.
DO THE PRINCIPLES IN AC APPLY
OUTSIDE OF THE HOSPITAL SETTING?
AC concerned detention in a hospital setting and the Supreme Court was clear that
conclusions reached were intended to be applicable to that situation and were not to be seen
‘as necessarily applying in full to private or family care arrangements’ (para. 389). is then
leaves the question of admission to residential care facilities, for example nursing homes.
Although the Supreme Court did not address the matter directly in AC, the important
judgments of the European Court of Human Rights Court in HM v Switzerland [2002]
38 EHRR 157 and Stanev v Bulgaria [2012] ECHR 46 are clear that protections against
deprivation of liberty under the European Convention on Human Rights apply to detention
in nursing homes and residential care facilities, as well as hospitals.
It has long been the case that sometimes people are admitted to nursing homes against
their wishes, that they are not allowed to leave and that they are intended to remain there
indenitely, usually for the rest of their lives. It is dicult to see how this does not qualify
as detention. Similarly, it is dicult to see how making an application for residential care
placement (for example, by using the Nursing Home Subvention Scheme) contrary to the
wishes of the person to be admitted is not a clear indication of an intention to detain.
In some cases, the person may have given a valid consent to admission but would not now
be allowed to leave if they wanted to. It would seem that this too is, logically, detention.
Other than a limited number of residents who are Wards of Court, there is no process
for review of their detention or for them to assert their right to leave. is then appears
to be a clear violation of the right to liberty of such residents, one which is occurring
on a widespread scale in residential care facilities. It may be that the steps required to
authorise detention may not be exactly the same in residential care cases as in hospital
cases. Nevertheless, there is no logical reason why the essential principle of the AC case
(i.e. that there must be a legal mechanism to protect a person’s right to liberty regardless of
their capacity) should not apply.
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55
THE ASSISTED DECISIONMAKING CAPACITY ACT 2015:
PERSONAL AND PROFESSIONAL REFLECTIONS
CONCLUSION
e decision in AC v CUH lays bare the profound deciencies in legal protections for
the right to liberty of people with impaired capacity in Ireland. e case shows that the
only legal mechanism currently available to protect this right is the antediluvian wardship
process. While providing oversight of admission, the protection of the right to liberty which
this provides comes at the cost of a blanket removal of the Ward’s decision-making authority.
is cost is clearly too high. It is widely acknowledged among law and policy makers, as well
as by health and social care professionals, that an alternative legal mechanism is needed.
A dra mechanism (which was to be inserted as Part 13 of the Assisted Decision-Making
(Capacity) Act 2015) was published for consultation in December 2017 and the responses
to this consultation was published in July 2019. ere has been no evident progress since
this time. e responses to the consultation show the scale of the challenge which legislators
face in attempting to produce a framework which provides meaningful protection for
the right to liberty of people in hospitals, nursing homes and other residential facilities
without becoming overly legalistic and bureaucratic. is, however, does not obviate the
need to address the very signicant gap in the current legal framework to provide eective
protection for the liberty rights of people with impaired capacity.
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