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11/05/2018

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Dealing with Capacity

Issues in Practice- Recent

developments

Áine Hynes

St.John Solicitors

Working within the current legal framework

Presentation will deal with

1 What is the current legal framework?

2 Consent to treatment issues

3 Recent developments in wardship

4 Issues arising in practice

Aine Hynes

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Paul and

Andrea Annear

Current legal framework

• Wards of Court – Lunacy Regulation (Ireland) Act of 1871 –

• Court (supplemental Provisions) Act 1961 (section 9)

• Rules of the Superior Courts Order 67 and Order 65

• Assisted Decision- Making (Capacity) Act 2015 (ADMA)

Very few sections thus far in force

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ADMA Sections thus

far in operation

• Minister Fitzgerald by, S.I. No. 515 of 2016, Assisted Decision-Making (Capacity) Act 2015

• (Commencement Of Certain Provisions) Order 2016 appointed the 17th of October 2016 as the day for the coming into operation of the following parts of the Act:-

• Part 1, other than sections 3, 4 and 7; and

• Part 9, other than section 96, section 102 and Chapter 3.

• The sections of Part 1 that have become operative deal with interpretation and expenses.

• Part 9 deals with the establishment of the new role of the Director of the Decision Support Service.

• The Mental Health Commission is statutorily charged with the appointment of the Director and it is envisaged that the Director will take over some of the functions previously managed within the Ward of Courts Services.

ADMA Sections thus far in operation

• Minister Harris, by S.I. No. 517 of 2016 Assisted Decision-Making (Capacity) Act 2015

• (Commencement Of Certain Provisions) (No. 2) Order 2016, appointed the 17th day of October 2016 as the day for the coming into operation of the definition of “Minister” in section 82; the definitions of “code of practice” and “working group” in section 91(1); and section 91(2).

• This Order provides for the commencement of section 91(2), and relevant definitions, of the Assisted Decision-Making (Capacity) Act 2015 for the establishment, by the Minister for Health, of a multidisciplinary working group of suitable persons willing and able to make recommendations to the Director of the Decision Support Service in relation to codes of practice pertaining to the advance healthcare directive provisions of the Assisted Decision-Making (Capacity) Act 2015

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Current legal framework

• Next of kin has no general authority to make decisions

• Enduring Power of Attorney

– No provision for health care decisions (to be included in ADMA)

– No public oversight

• Advance Healthcare Directives – no statutory basis to date

• Provided for in Assisted Decision-Making (Capacity) Act 2015. Allow a

person to make advanced healthcare directives and to appoint a healthcare

representative who may make decisions in relation to treatment.

Aine Hynes

Consent to treatment

Principle of autonomy

Common law“Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”John Stuart Mill On Liberty (1869)

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient’s consent commits an assault.”Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914)

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• Schloendorff has been accepted by the Irish Courts

In re a Ward of Court [1996] 2 IR 100 per Denham J

“Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be trespass against the person in civil law, a battery in criminal law, and a breach of the individual's constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons . . . .

Aine Hynes


• In re a Ward of Court [1996]

• It is not pertinent whether the treatment is ordinary or extraordinary

medical treatment. Consent of the adult with capacity is necessary for

either ordinary or extraordinary medical treatment.”

• Court relied on Article 40.3.1 of the constitution

• “the State guarantees in its laws to respect and as far as practicable by its

laws to defend and vindicate the personal rights of the citizen”

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Statute Law

Section 4 Health Act 1953

(1) Nothing in this Act or any instrument thereunder shall be construed as imposing an obligation on any person to avail himself or any service provided under this Act or to submit himself or any person for whom he is responsible to health examination or treatment.

(2) Any person who avails himself of any service provided under this Act shall not be under any obligation to submit himself or any person for whom he is responsible to a health examination or treatment which is contrary to the teaching of his religion

Aine Hynes


• Consent is necessary for medical treatment and it makes treatment lawful.

• If a doctor treats or operates on a person without that person’s valid

consent, where the consent could and should have been obtained, then the

doctor is committing an unlawful act.

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Ingredients of Valid Consent

There are three elements required for a valid decision on consent and a refusal

to consent:

(1) Voluntariness

(2) Information

(3) Capacity

• Mental capacity

• Age

Aine Hynes

Voluntariness

• If the decision on consent is not voluntary, it is not valid

– Re T [1992] 4 All ER Coercion from family members

– Non practising Jehovah’s witness who initially agreed to blood transfusion but refused her consent after being visited by her mother who was a practising witness

– Hospital applied to court to overturn her decision to refuse and it was overturned on the basis her refusal to give consent was invalid on the ground it had not been voluntary as she had been under undue influence and duress

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Voluntariness

• Fitzpatrick V K [2008] IEHC 104 Laffoy J

• Referring to the judgment of Walsh J. in G. v. An Bord Uchtála

• “emphasises that to be valid the consent must be “free and willing”, in other

words it must be voluntary. That a decision to refuse life-saving treatment

must represent the patient’s independent decision and that a doctor or a

court evaluating capacity must be satisfied that the patient’s will was not

overborne in such a way that the refusal will not have represented “a true

decision” …. is beyond question

Aine Hynes

Information necessary for valid

consent

Must have information

– Sufficient

– Relevant

• Risks

• Benefits

• Alternatives

Standard is what a reasonable patient would want to know, and there is a

shift toward a patient centered approach away from therapeutic privilege.

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Capacity to Consent

Capacity

(1) Age

(2) Mental Capacity

• Age:

– Over 18: can consent to or refuse any treatment

– 16-17: can consent to medical, dental and surgical treatment; but not clear if there is a right of refusal

Aine Hynes

Capacity to consent

Non-Fatal Offences against the Person Act 1997 section 23:

“The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent of guardian.”

Under 16 “Gillick competent” minor.

Considered in the case

In the matter of Section 25 of the Mental Health Act 2001in the matter of XY, a minor [High Court 2012 no 11101]

Minors and the Rights of the Family

“A decision about a child’s medical treatment is, prima facie, within the authority of his family.” AO & DL v Minister for Justice [2003] 1 IR 1 at 159 per Hardiman

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Mental capacity to consent

• Re C [1994] 1 WLR 290

• C was a 68-year-old man suffering from chronic paranoid schizophrenia and detained in a special hospital in England. He brought a case in the High Court, after the hospital had refused to give him assurances that it would not, at some time in the future, carry out a below-knee amputation to treat his gangrenous foot.

• A vascular surgeon had estimated C’s chances of survival at 15% if he did not have an amputation, but C had refused the surgery and his foot was treated conservatively, with some success. However, on the grounds that C’s capacity was impaired by his mental illness, the hospital was unwilling to confirm that it would not carry out the amputation at some future date.

Aine Hynes

Mental capacity to consent

Despite the fact that C displayed grandiose delusions of being a world-renowned doctor, the court found that he was competent to decide this matter for himself because he had demonstrated:

(a) that he could understand and retain the treatment information,

(b) believe it and

(c) weigh it in the balance to arrive at a choice.

• Applied in Ireland in Fitzpatrick v FK (2008) Laffoy J

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Mental Capacity to Consent

• Fitzpatrick v FK

– Jehovah’s Witness refusing blood transfusions

• Six principles in approaching capacity to consent:

1. Presumption of capacity

2. “Functional test”

3. Comprehend-retain-believe-weigh information

4. Relevant information including consequences of deciding either way

5. Nature of any irrationality

6. More important the decision, the more capacity required

Aine Hynes

Irrational Decisions

The patient has a right to be wrong, and assuming that thought process is rational, the outcome need not be.

However if the thought process underlying the decision irrational then the decision will be found to be irrational. Therefore a decision will be irrational where is made based on

1. Psychotic beliefs

2. Phobias

3. Fundamental misunderstanding or misperception of reality

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How to make application for permission for treatment where capacity is at issue

• Presumption always remains in favour of capacity being present

• In Fitzpatrick v FK case three deficits were identified by the court:

Application not on notice to patient

Patient not represented

Patient not told of right to apply to court until after the blood transfusion

completed.

Recent case studies where this procedure has been used in patients lacking

capacity

Aine Hynes

Recent developments in Wardship

• Wardship procedure

• Alternative legal measures?

Inherent jurisdiction applications

• AM decision – deprivation of liberty safeguards and review of wards

• Flexibility of current applications – urgent and temporary orders

• End of life applications – recent decision

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Wardship procedure

• The legislative framework is

• Courts (Supplemental Provisions) Act 1961, section 9;

• Lunacy Regulations (Ireland) Act 1871.

• Wardship jurisdiction is not confined to Lunacy Regulation (Ireland) Act

1871,

• Section 9 of the Courts (Supplemental Provisions) Act 1961 - general

protective jurisdiction over persons of “unsound mind” which is vested in

the High Court

Wardship procedure

• The wardship jurisdiction is a discretionary jurisdiction.

• In order for an adult to be made a ward of court, it is necessary for the

Court to be satisfied that:

• (1) The person is of unsound mind and is incapable of managing his or her

own person and affairs; and

• (2) It is appropriate and necessary to make the person a ward of court in

order to protect his or her person and/or property.

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Wardship procedure

• There is a jurisdiction to take into wardship a person who requires

protection but who is not entitled to any property requiring such protection

and management (re D a Ward of Court 1987 IR449)

Wardship procedure

• Order 67 – procedure to make a person a ward of court

• petition “praying for an inquiry as to the soundness or unsoundness

of mind” of the respondent. The petition should be filed with the

Office of the Wards of Court and signed by the petitioner and

attested by his or her solicitor.

• The petition must be verified by an affidavit of the petitioner

• Affidavits of two medical practitioners (usually to verify medical

reports – affidavits must state that the person is of unsound mind

and incapable of managing his or her affairs)

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Wardship procedure

• The petition and affidavits are lodged with the wards of court office.

• If priority is sought, this should be indicated.

• These documents are reviewed by the Office and if they are correct, they

are given to the President in chambers.

• President then directs an independent assessment of the respondent by a

medical visitor from the Court’s own panel (section 11 1871 Act – may not

be strictly necessary if the proofs are already there)

Wardship procedure

• When President reviews the medical visitor’s report, and if it confirms that

the person is of unsound mind and incapable of managing their affairs, then

he will make an inquiry order in chambers.

• Attested copy of the petition and the inquiry order is sent to the petitioner.

• Notice of the petition and the order for inquiry must then be served on the

respondent personally and on such other persons as the President may

direct.

• The required notice must be endorsed on the back of the attested copy of

the petition (Form no. 4 of the Rules of the Superior Courts)

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Wardship procedure

• Notice must be addressed to the respondent, dated and signed by the

petitioner or his solicitor.

• Service is effected by showing the respondent the attested copy of the

petition and leaving a copy of the petition with the notice endorsed on the

back of it.

• Details of service must then be endorsed on the attested petition.

• The attested petition and an affidavit of service is then filed in the Office of

the Wards of Court.

Wardship procedure

• Respondent has seven days in which to object in writing.

• The Inquiry is then listed for hearing.

• In the absence of objections from the respondent or other third parties, an

inquiry is usually determined on date first listed for hearing.

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Alternative legal measures

• The High Court has “inherent jurisdiction” that is not dependent on any

statutory provision.

• Court has an inherent jurisdiction to vindicate and defend the personal

rights guaranteed under Article 40.3.12

• The principles relevant to the proper exercise of this inherent jurisdiction

have been developed over time and can be summarised for present

purposes as follows


• Inherent jurisdiction applications were made in respect of vulnerable adults and were seen to be a good alternative to wardship.

• Petition for wardship was seen as an extreme option and not suitable for urgent and temporary orders.

• BUT

• Inherent jurisdiction should not be invoked where there is an existing regime available for dealing with the issue.

• It was used in some cases, such as JOB to detain persons because of a “lacuna” or “omission” in the statutory law. *

*Additional slides dealing with full details of JOB case

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• In the matter of F.D. [2015] IESC 83 Laffoy J - 12 November 2015 Supreme Court

• “On this appeal the issue was whether there exists, alongside the wardship jurisdiction expressly vested by statute in the High Court, an inherent jurisdiction, which exists outside the wardship jurisdiction, to enable and regulate the protection of the property of a person who may lack mental capacity. As was established with clarity by the decision of this court in In Re D [1987] I.R. 449, the current jurisdiction of the High Court in matters involving mental incapacity is the jurisdiction expressly vested in the High Court by the Oireachtas by virtue of subs.1 of s.9 of the Act of 1961 and exercisable in the manner stipulated in ss.2 of that section. Neither the nature of the High Court’s judicial function nor its constitutional role in the administration of justice, in my view, permits the recognition of an inherent jurisdiction in the High Court to make provision for the protection of persons with mental incapacity outside the wardship process. ….”

Wardship and the MHA 2001

• In the matter of A.M., a proposed Ward of Court [2017] IEHC 184 President

Kelly

• Noted the decision of Laffoy J and noted inherent jurisdiction should not be

used where there is a statutory regime.

• President has made it clear that the HSE were to stop making inherent

jurisdiction applications

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In the matter of A.M., a proposed Ward of Court [2017] IEHC 184

• Application by the HSE to have a person detained in the CMH pursuant to the wardship regime.

• Argued by the respondent that he should be detained under the Mental Health Act.

• Argued that he would then be entitled to regular statutory review by an independent Mental Health tribunal and would be under the general monitoring of the Mental Health Commission. He would also have access to the Inspector of Mental Health services.

• Furthermore, his treatment would have to conform to the provisions of ss. 56-60 of the Act and seclusion and restraint would be subject to s.69 and rules made by the Commission.

• It was suggested in argument that these rights are superior to any rights which he would have if detained as a ward of court.


• I am not persuaded that there is any merit in this argument. Wards of Court who are detained pursuant to the exercise of the jurisdiction conferred under s.9 of the 1961 Act have their rights just as effectively secured and respected as if detained pursuant to the procedure set out in the Act.

• First, the detention of a ward pursuant to s.9 has to be operated in a manner consistent with the Constitution and with the European Convention on Human Rights. This is achieved in part by a system of regular review. Certainly since I took up my present office I have made it clear that any orders made for the detention of a ward of court must be subject to regular reviews at least every six months. In many cases a shorter period of review has been ordered. On such review there is an entitlement on the part of the ward to appear and or to be represented. Each review involves a report being presented to the court by the treating consultant psychiatrist, the contents of which are made known to the committee of that ward. If necessary, the psychiatrist will be required to give oral evidence. If I have any doubts concerning the report presented it is open to me to order a Medical Visitor to conduct an examination and to make a separate and independent report to me on the condition of the Ward.

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• In addition, detention orders made under the wardship jurisdiction are just that. They do not authorise the use of restraint unless such an order is specifically sought and then it is granted only on appropriate evidence as to its necessity being tendered.

• Furthermore, all detention orders are made with liberty to all interested parties to apply on very short notice. Certainly never more than 48 hours notice is required in order to apply to court. In practice it is often a much shorter notice period that is involved.

• Indeed, I believe it may be said, that in some respects the entitlements of a ward of court subject to a detention order are superior to those of a person detained under the Act. A long term detainee under the Act has his position reviewed every 12 months. The review period for a ward of court is never more than 6 months. In addition, the ward of court has immediate access to the High Court if any change in circumstances occurs whereas there is no such automatic entitlement to a patient detained under the Act.

Flexibility

• Flexibility of current applications – urgent and temporary orders

• Applications framed “In the matter of intended wardship”

• Section 11 1871 Act – court visitor can go out to make assessment without

petition

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End of life applications – recent decision

• Health Service Executive -v- J.M. A Ward of Court & ors [2017] IEHC 399

22/06/2017

• HSE sought to have permission for to withhold an increase in existing ventilator support in even of respiratory deterioration and to withhold CPR, defibrillation and other measures

• JM’s parents could not consent to this

• President visited AM in hospital

• Having considered all of the medical testimony and the factors which I must take into account I have come to the conclusion that it is not in J.M.’s best interests that he should have an increase in ventilator support in the event of a deterioration in his condition. The risks involved in so doing are substantial. No doctor supports the provision of the therapy. No improvement of his underlying condition will be effected. No lessening of the burden of J.M.’s illness will be brought about. No clear medical benefit will be achieved. The burden of the treatment outweighs such limited benefits as may accrue from it. Notwithstanding his parents wishes I do not believe J.M.’s best interests are served by refusing the application. Accordingly, this relief is granted

Issues in

practice

• Identify vulnerable client

• Identify when it is not proper to act on behalf of a vulnerable person

• Provide practical guidance as to the steps a solicitor can take to ensure that their dealings with vulnerable clients, and the transactions that they assist them with, are not open to subsequent legal challenge or a potential negligence claim

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Role of

the legal

advisor

and the

vulnerable

client

• The role of the legal advisor in protecting the elderly and vulnerable client was identified in the Law Reform Commission Consultation Paper on Law and the Elderly

(LRC CP 23 - 2003) published in June 2003.

• The Commission provisionally recommended that “detailed guidelines

should be considered to assist solicitors and other professionals in dealing with financial

and property transactions, including gifts of property and guarantees for loans, for

vulnerable elderly people. These guidelines should assist solicitors in detecting and

dealing appropriately with suspected cases of undue influence and in advising elderly

clients as to the consequences of their actions in respect of their own future care.”

Who is a vulnerable client?

• A Guide to Professional Conduct of Solicitors in Ireland, 2nd Edition (“2nd Edition”) relating to duties to vulnerable clients.

• Contrast with new provisions of A Guide to Good Professional Conduct, 3rd Edition (“3rd Edition”) identifying the “special duty of care in respect of vulnerable clients”.

• New provisions in 3rd Edition - Client lacking mental capacity – assessing the capacity of the client to enter into legal contract to give instructions and assessing capacity to enter into a legal transaction.

• Practical application - assessing testamentary capacity.

• Consider the extended duties in cases of suspected duress and undue influence and “the improvident transaction”.

• New provisions in 3rd Edition on termination of retainer in permanent loss of capacity cases and consideration of the Blankley case.

• Taking instructions from incapable client - new role for solicitors under the Mental Health Act 2001

• Assisted Decision-Making (Capacity) Act 2015

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A Guide to Professional Conduct of Solicitors in Ireland, 2nd Edition

• Vulnerable clients

• The relationship between a solicitor and a client is a fiduciary relationship.

Accordingly in dealings with any client, a solicitor should be cognisant of the

inexperience, youth, age, want of education, lack of knowledge or business

acumen of the client

A Guide to Good Professional Conduct 3rd Edition

• Vulnerable clients

• “The solicitor has a special duty of care in respect of vulnerable clients. The

relationship between a solicitor and a client is a fiduciary relationship.

Accordingly, in dealings with any client, a solicitor should be cognisant of

characteristics which make a client more vulnerable, such as the

inexperience, youth, want of education, lack of knowledge, lack of business

acumen, mental illness, frailty due to the age of the client or the client’s lack

of ability to make an informed and independent decision regarding their

affairs.

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A Guide to Good Professional Conduct 3rd Edition

Solicitors should be alert to the danger of facilitating any type of financial abuse of a vulnerable client such as the following:-

• Client forced to give money or property to another

• Client denied access to money or property

• Money or possessions stolen

• Client forced or misled into signing over ownership of their

home or other property

• Client’s signature forged

• Client forced to change their will

• Misuse of a Power of Attorney

• Misuse of joint bank accounts

Conflict of Interest and vulnerable client

Separate representation for vulnerable clients

• In chapter 3 of the 3rd Edition of the Law Society Guide dealing with Conflict of Interest, useful guidance is set out when acting for both sides of a transaction where one of the parties is vulnerable:-

• “Where, in the judgment of a solicitor, one of the parties to a non-conveyancing transaction, while having full capacity, is vulnerable, the solicitor should not act on both sides and each party should be separately represented by a different firm. This is in order to ensure that both parties receive proper advice. It helps preserve the integrity of the transaction and protects it from being challenged at a later date. It also protects the solicitor.”

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Family member

cannot give instructions for another

family member

lacking in mental

capacity

The 3rd Edition also clearly set outs the legal position that a family member cannot act on an ad hoc basis for a family member lacking in mental capacity where there is no legal framework in place to do so.

Client lacking mental capacity

A person lacking mental capacity does not have capacity to contract with a solicitor for legal services. Accordingly, where a family wishes to provide for a member lacking mental capacity which involves transferring, or otherwise dealing with, their assets, the solicitor who has been consulted should advise the family that it is not possible for that solicitor’s firm to act on both sides of the transaction. The family should be informed about the Wards of Court system. It should be explained that if the Wards of Court Office is involved, it will act on behalf of the person lacking mental capacity to ensure that the interests of the person lacking mental capacity are protected. For instance, it would not be correct for the solicitor to attempt to deal with this person’s assets, by getting that person to sign documents.

Assessing capacity of the client to give instructions and capacity to enter into a legal transaction

A Guide to Good Professional Conduct of Solicitors in Ireland, 3rd Edition, page 12

Client lacking mental capacity

• As with any other contract, if a client lacks mental capacity, he does not have the legal capacity to enter into a contractual relationship with the solicitor.

• A decision on legal capacity should be made in relation to the specific issue about which the client must give instructions, in recognition of the fact that there are different levels of understanding required for different transactions. The client may have sufficient capacity to make some decisions but not others. There should also be recognition that mental capacity may fluctuate. An assessment as to capacity should be made at the time the client is giving instructions and at the time of the execution of any document.

• However it should also be recognised that in some cases a person may not have the capacity to make any decisions which have legal consequences

Contrast with 2nd Edition

If a client is of unsound mind, he does not have the legal capacity to enter into a contractual relationship with the solicitor.

Now the solicitor should make a decision on legal capacity.

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Assessing capacity to instruct

• Assessing capacity to instruct is not novel to solicitors who act for elderly clients. A solicitor will always be alert to capacity issues in making a will for a client. Indeed in drawing up an Enduring Power of Attorney a solicitor signs the following statement:

• I, ....................................................., Solicitor, of ....................................... hereby state that after interviewing the donor [and making any necessary enquiries]* I am satisfied that .................(the donor) understood the effect of creating the enduring power and I have no reason to believe that this document is being executed by the donor as a result of fraud or undue pressure.

Signed............................................................

Date...............................................................

How to assess capacity of client to instruct and enter transaction: recording the

assessment

• It is very important that solicitors make an assessment and record their assessment of the client’s capacity to understand the information relevant to the nature of the transaction, retain that information, weigh it in the balance to arrive at a decision and be able to communicate their decision.

• Therefore a solicitor should -

• Set out information to be communicated to the client in relation to the transaction and set out the options available.

• Ascertain the client’s understanding of the information and the options.

• Can the client retain the information? This can be ascertained by asking the client their understanding of what is to be transacted.

• Can the client weigh the information as part of the process of making a decision?

• Can the client communicate the decision?

• Instruction sheets

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How to

assess

capacity of

client:

recording

the

assessment

If the solicitor has concerns regarding the capacity of their client to instruct, assistance may be sought from a medical practitioner. However, practitioners should note the decision in Re

Glynn deceased, where Mr Hamilton J held that the test for capacity is a legal test and not a medical one. However, if there is a diagnosis which would give rise to concerns regarding capacity, then a medical certificate should be sought.

Once the solicitor is satisfied that the person has the requisite capacity, with or without the obtaining of corroborative medical evidence, this must be recorded very carefully by the solicitor. Careful attendance notes are important and particularly so where there are issues of capacity or vulnerability. Comprehensive attendance notes assist in resolving future issues and can minimise litigation. Re Glynn deceased, [1990] 2

IR

SCR – Power of attorney [2015] IEHC 308Ms Justice Baker 20th May 2015

• Challenge to the validity of an EPA – duties of the solicitor

• The court noted that “neither the doctor nor the solicitor who certified capacity on the instrument….. adduced contemporaneous notes at the hearing.”

• The judge regarded this as “less than satisfactory “ and she indicated that she would expect at the very minimum that

• “a solicitor and a doctor who have a statutory obligation to certify capacity for the purposes of creation of an EPA should record their findings and make these available if necessary to a court charged with determining the question of mental capacity in any further dispute”

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SCR case

The court also referenced the Law Society Guideline of 2004 referring to the fact that the statement of the doctor and the solicitor should “ideally be completed within 30 days of the signing”.

Further the solicitor should keep an attendance note demonstrating the client’s understanding when the client is elderly or incapable to protect the client and to inform the court.

The court in this case found that the solicitor had not followed the “best practice” guidelines.

Practical application - assessing testamentary capacity

• Section 77 of the Succession Act, 1965, states as follows:

• “(1) To be valid a will shall be made by a person who … (b) is of sound disposing mind….”

• As “sound disposing mind” is not defined and as the test for testamentary capacity is not defined, case law is relied upon to clarify testamentary capacity

• Solicitors taking instructions from a testator should be aware of the requisite elements of the test and be satisfied that the testator has testamentary capacity.

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Practical application -

assessing testamentary

capacity

The test for testamentary capacity was laid down in the case of Banks v Goodfellow (1870)

The elements of the test are as follows:-

1. The testator must understand that he or she is making a will, a document that will dispose of assets on death. The testator however need not understand the precise legal effect of the provisions in the will.

2. The testator must be capable of knowing the nature and extent of his or her estate.

3. The testator must be able to give consideration to those persons who might be expected to benefit from his or her estate and decide whether or not to benefit them.

A practitioner should record the testator’s mental position in a detailed attendance or if appropriate in the circumstances, by way of affidavit.

Practical application -

assessing testamentary

capacity

• Great care must be exercised by a solicitor in any instance where there is doubt about the capacity of the testator.

• The practice of the Probate Office is to require an affidavit of mental capacity in any case where a testator dies in a psychiatric institution and the Probate Office will also look for an affidavit where the death certificate refers to dementia or Alzheimer’s disease.

• where there is any doubt regarding the capacity of the client, it is prudent for the solicitor to arrange to have the client’s doctor confirm the testator’s mental capacity and if necessary have the doctor swear an affidavit of mental capacity at the time of the making of the will.

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The extended duties of a solicitor relating to suspected cases of duress and undue influence and “the improvident transaction”

Duress or undue influence – 3rd Edition Law Society Guide to Good Professional Conduct

“A solicitor should not accept instructions which he suspects have been given by a client under duress or undue influence. Particular care should be taken where a client is elderly or otherwise vulnerable to pressure from others. A solicitor will usually, but not always, see a client alone. In the case of suspected duress or undue influence the solicitor should ensure that the client is seen alone.”

This is the same as the 2nd Edition guide

What should the solicitor do?

“A solicitor has a duty to be satisfied that the client is free from improper influence….If the solicitor is not so satisfied, then it is the solicitor’s duty to advise the client not to enter into the transaction or to refuse to act further for the client.”

Law Society Gazette April 2009. Practice Note Acting for an Elderly Client- Guidelines for Solicitors

The improvident transaction

“A solicitor’s duty involves more than merely taking instructions. A solicitor has a duty to make full inquiries about the client’s circumstances and then to advise the client whether the client should proceed with the transaction, taking all factors into account. The advices should include advising the client of making provision for his future needs.

If a court is asked to investigate an allegation of duress or undue influence, it is not necessary that the court finds a wrongful act. Where the presumption arises, the court intervenes in order to prevent an abuse of influence possessed by one party over the other.

Where there is no evidence of undue influence but the client wishes to enter into a transaction which would not be in their best interests, such as an improvident bargain, a solicitor is under a duty to clearly advise the client of the consequences of entering into the transaction and the possible alternative options available to the client.

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• This is a significant departure from the usual role of the solicitor and goes beyond concepts of undue influence or duress.

• The additional duty to advise in relation to the improvidence of a transaction reflects the findings of the Supreme Court in Carroll v Carroll (2000) 1 ILRM 2010

• In Carroll v Carroll, Mr Barron J held that “a solicitor does not fulfil his obligations to his client by simply doing what he is asked or instructed to do. He owes such person a duty to exercise his professional skill and judgment and he does not fulfil that duty by blithely following instructions without stopping to consider whether to do so is appropriate. Having done so, he must then give advice as to whether or not what is required of him is proper”.

• In that case, Mr Carroll had transferred his sole asset to his son without comprehensive advices and the transaction was set aside. The Supreme Court found that the solicitors in question had not considered that the donor was disposing of his real assets without making any provision for his maintenance or provision for future needs and had made no such inquiries from their client.


• High Court Bourke v O’Donnell & Ors. (2010) IEHC 348.

• Delivered by Mr Hedigan J on the 5th of October 2010. Case deals with the duty of a bank in relation to a vulnerable client. This case is cited in the footnote to the Duress or Undue Influence section of the 3rd Edition. There is a concern that the findings of the Court regarding the duties of a bank to their client in could be applied to future cases regarding the duties of solicitors to their clients.

• The Plaintiff Mary Burke, an elderly lady, was brought from her nursing home by the first named defendants George and Pauline O’Donnell to her bank where she proceeded to gift them €124,000.00. The bank manager met with Mrs Burke alone and advised her to obtain independent legal advice, which she refused. The manager believed she had the capacity to give the instruction to transfer her funds to the O'Donnell's.

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There had been a long term relationship in existence between the Plaintiff and the first named defendants, and the Plaintiff was dependant on them.

Mr Hedigan J considered that she was a highly vulnerable elderly lady and the transaction itself was wholly improvident.

He held that the bank had breached an implied term that it would not act upon instructions from its customer, the Plaintiff, when she did not have the capacity to give instructions.

The Court found that the circumstances of this transaction were so bizarre that the bank ought to have enquired further to satisfy itself that their customer had the capacity to issue instructions, and in not doing so had breached its duty and so was liable to the Plaintiff for the money lost.

New provisions in 3rd Edition on termination of retainer in permanent loss

of capacity cases

The provisions in the 2nd Edition in relation to acting for person of unsound mind were:-

• “As with any other contract, if a client is of unsound mind, he does not have the legal capacity to enter into a contractual relationship with the solicitor. If the solicitor’s instructions predate the mental illness, the retainer of the solicitor is determined by law when the client becomes mentally ill. The solicitor cannot proceed on the basis of instructions given before the mental illness”.

The provisions in the 3rd Edition are as follows:-

• “Permanent loss of capacity

• If a client suffers permanent loss of capacity the retainer of the solicitor is terminated by law. If the solicitor’s instructions pre-date the loss of capacity the solicitor cannot proceed on the basis of instructions given before this happens. A Guide to Professional Conduct of Solicitors in Ireland, 2nd

Edition, page 12

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Termination of retainer in permanent loss of capacity cases

• Recent decision - Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB) (05 February 2014) -reviews the law on the termination of a retainer in such circumstances.

• At first instance the court held that as a matter of law, supervening incapacity automatically frustrated and thus terminated a contract of retainer and on appeal, the High Court, in essence, held that the supervening incapacity of a client was not an event which frustrated the contract in relation to the provision of legal services, leading automatically to its termination.

THANK YOU

Aine Hynes

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JOB -Inherent Jurisdiction case

• HSE v J.O’B [2011] IEHC 73.

• Mr Justice Birmingham was requested to make Orders in respect of Mr

O’B, a person who lacked capacity to make decisions in relation to his

treatment, care and welfare. The HSE argued that Mr O’B required an

appropriate and continuous regime of clinical, medical and nursing

treatment in an appropriate environment of therapeutic security.

• At the time of the application Mr O’B was residing in England and wished

to return to Ireland.

• It was proposed that Mr J.O’B be detained at the Central Mental Hospital,

Dundrum.

Aine Hynes

JOB Inherent Jurisdiction case

• Mr Birmingham J. noted that the Courts of England and Wales have taken a very broad view of the inherent jurisdiction in respect of vulnerable adults.

• Re S.A. (Vulnerable Adult with Capacity Marriage) [2006] F.L.R. 867. Discussing the powers of the court, Munby J. commented as follows at para. 84:-

• “As I have said, the Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.”

Aine Hynes

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JOB Inherent Jurisdiction case

• “The main difference is that the Court cannot make an adult a Ward of

Court… But this apart, the Court’s powers to make orders under the

inherent jurisdiction in relation to adults would seem to be as wide as its

powers when exercising its inherent parens patriae jurisdiction in relation

to children. Just as there are, are in theory no limits to the Court’s powers

when exercising the Wardship jurisdiction, I suspect that there are, in

theory, few if any limits to the Court’s powers when exercising the

inherent jurisdiction in relation to adults.”

• He then went on to refer to his own comments in Re S. (Adult Patient)

(Inherent Jurisdiction:; family Family life) [2002] EWHC 2278 (FAM) [2003]

1 F.L.R. 292, where he had commented, at para. 50:- “The Court has

jurisdiction to grant whatever relief in declaratory form is necessary to

safeguard and promote the incapable adult’s welfare and interests.”

Aine Hynes

JOB - Inherent Jurisdiction case

• Birmingham J. stated that in the absence of full

debate, he didn’t necessarily agree with this broad

view but held “in more limited cases, where an adult

lacks capacity and where there is a legislative lacuna

so that the adult’s best interests cannot be served

without intervention of the Court, I am satisfied that

the Court has jurisdiction, by analogy with cases like

DG and the several High Court decisions from

different judges of the High Court, to intervene”

Aine Hynes

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• The Court accepted the HSE’s submission that the Court could exercise its

inherent jurisdiction to make the Orders sought.

• Pointing to the analogous jurisdiction of the High Court in respect of “at

risk” children, Birmingham J., noted that the Supreme Court had accepted

this jurisdiction in respect of minors in the D.G case [D.G. v. Eastern Health

Board [1997] 3 I.R. 511,

• In that case the Supreme Court determined that the High Court had an

inherent jurisdiction to order the detention of a child in the care of the

HSE in his best interests and welfare, but only in very limited

circumstances. The court held that the High Court had jurisdiction to do all

things necessary to vindicate the personal rights of the child, and that it

had an inherent jurisdiction to direct a child’s detention in a prison

because of the failure of the State to provide an appropriate facility to

care for the particular needs of the child applicant.

Aine Hynes


• In the O’B case, Birmingham J. was mindful of the fact that he must consider, before making the Orders, the provisions of both the Constitution and the European Convention on Human Rights.

• The Court cited Articles 40.3.1 (personal rights), 40.3.2 (duty on the State to protect and vindicate the life, person, good name and property of every citizen) and 40.4.1 (right to personal liberty) of the Constitution and Article 5(1) of the European Convention on Human Rights (right to liberty and security of the person) as requiring attention.

• The Court noted that, in relation to Article 5 of the ECHR, the detention of persons of unsound mind, is lawful but that the European Court of Human Rights had found that an individual cannot be deprived of his right to liberty on this basis without three minimum requirements having been met. Firstly, the “unsoundness of mind” must be reliably shown. Secondly, the mental disorder must be of a kind and degree warranting compulsory confinement and thirdly, the validity of continued confinement depends on the persistence

of such a disorder. (Winterwerp v The Netherlands)

Aine Hynes

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• The Court also considered what structures were necessary by

way of safeguard.

• Birmingham J., noted the serious interference with Mr O’B’s

constitutional rights contemplated by the Orders and stated

that “that interference, if it is to be contemplated at all, must

be reviewed on a regular basis and if it is to be continued will

have to be justified on a regular basis”.

• The Court, having been satisfied as to jurisdiction and

safeguards proceeded to make the Orders as sought.

Aine Hynes

Documents and videos from Mental Health Law Conferences at UCC are available athttp://www.ucc.ie/law/docs/mentalhealth/conferences/