JELC Spring 2026

Journal of Elder Law and Capacity

Journal of Elder Law and Capacity

EditorialPanel

LindaJohnston, (Chair),TEP(Retired)

ElizabethDowling AssistantLibrarian,LawSocietyofNorthernIreland

ArleenElliott Solicitor,TheElliottTrainorPartnership

DrBarbaraEnglish ConsultantinOldAgePsychiatry

DrPatrickHann ConsultantinOldAgePsychiatry

AndrewKirkpatrick

TEP,Solicitor,BoydRice

ClaireMcNamee

ConveyancingandNon-ContentiousBusinessLead,LawSocietyofNorthernIreland

AimeeMiller

HeadofLegalServices,CommissionerforOlderPeopleforNorthernIreland

n t e n t s

a b l e o f

DeprivationofLibertySafeguards(DoLS)inNorthern Ireland:theMentalCapacityActinpractice DrÁngelLeiraPernas

DeprivationofLibertySafeguardsinIreland:anad hocApproachtotheProtectionoftheVulnerable CiaránCraven

RegisteredIntermediariesas‘Facilitatorsof Communication’intheJusticeSystem DrJohnTaggartandEmmaMcIlveen

APracticalGuidetodealingwithDigitalAssets AndrewKirkpatrick

21

42

55

59 NewPublication:TheIntermediaryintheCriminal JusticeSystem

60 Casenotes AlexCisneros,andClaireMcNameeandElizabeth Dowling

66 Tables

The Law Society of Northern Ireland along with past and present members of the Journal panel would like to extend their deepest gratitude to Linda Johnston as we mark the last issue under her guidance as Chair of the panel. From the journal’s inception, Linda has been integral to shaping its standards and guiding it from an idea to a respected publication for this community. With drive and dedication, as well as considerable time commitment, Linda has built enthusiasm for the journal and sought quality content The panel will continue to publish with the same ethos but her influence will be missed.

The Journal of Elder Law and Capacity is a source of information for a range of practitioners dealing in all aspects of elder law and capacity.

Published by the Law Society of Northern Ireland, it aims to have UK and international appeal with coverage on legal issues relevant to elder clients, clients with capacity issues, their families and carers

Submission of content

We welcome the submission of articles for consideration by the Editorial Panel with a view to publication. Authors are asked to contact Elizabeth.Dowling@lawsoc-ni.org to obtain a style sheet.

Submission of an article will be held to imply that it contains original unpublished work and is not being submitted for publication elsewhere. All contributions are sent at the author’s risk. Please note that where there are references to websites, links to these websites were live at the time of writing.

ISSN 2632-3923

Disclaimer

The Law Society of Northern Ireland accepts no responsibility for the accuracy of the contents of the Journal and any views and opinions expressed in the Journal are those of the contributors and are not necessarily those of the Law Society of Northern Ireland, save where otherwise indicated Although all reasonable care is taken in the preparation of material for publication in the Journal, the Editorial Panel, publishers and contributors accept no responsibility for any loss caused to any person acting or refraining from acting as a result of material contained in or omitted from the Journal. The Journal is not a substitute for professional advice. Readers should satisfy themselves as to the accuracy, completeness, adequacy and currency of the contents of the Journal.

© Law Society of Northern Ireland 2026. All rights reserved. No part of this publications may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording of any retrieval system, without the written permission of the Law Society of Northern Ireland.

Published by the Law Society of Northern Ireland, 96 Victoria Street, Belfast BT1 3GN

Deprivation of Liberty Safeguards (DoLS) in Northern Ireland: the Mental Capacity Act in Practice

Dr Ángel Leira Pernas, Policy and Research Unit of the Commissioner for Older People for Northern Ireland

The Mental Capacity Act (Northern Ireland) 2016 ‘the (MCA’ or ‘the Act’) was enacted in May 2016 to fill a legislative gap, although to date the Act has only been partially implemented. Before the Act, the Mental Health (Northern Ireland) Order 1986 (‘the MHO’ or ‘the Order’) provided the legal framework for regulating involuntary detention for treatment in hospitals of individuals with mental disorders. However, there was no framework governing situations in which individuals were deprived of their liberty in settings such as care homes This gap raised significant human rights concerns, which the MCA was designed to address.

By the end of 2024, there were 12,559 commissioned care home placements in Northern Ireland Trusts, 3186 (approximately 25%) of which were subject to a deprivation of liberty (‘DoL’) under the Act. The real number of people who are deprived of liberty in these settings is, however, even higher, as these figures do not include the number of individuals deprived of liberty under emergency provisions. Currently, the single main reason for people to lose their liberty in Northern Ireland is a DoL under the MCA While the total prison population in Northern Ireland in 2023 was 1,685 individuals 3,186 people were deprived of liberty with a full Trust Panel authorisation, and many more were under emergency provisions.

Although the protections introduced by the MCA are undoubtedly essential, it is reasonable to assume that resourcing levels and funding gaps impact its delivery Therefore, in order to explore to what extent health and social care professionals can meet the Act’s requirements, the office of the Commissioner for Older People for Northern Ireland (‘COPN’I) undertook research on the operational realities of the DoLS provisions of the MCA in 2024, reviewing how they were working in practice, and considering whether they were effective in addressing the original concerns around legislative provisions

1 This information was obtained from a Freedom of Information (FoI) request to all HSC Trusts of Northern Ireland

2. According to the figures provided by the NHSCT, 20.23% of their commissioned care home placements are under a live DoL, while an additional 9 9% are under emergency provisions The SHSCT figures show that 11 92% are under a live DoL and an additional 3 7% are under emergency provisions

3 Department of Justice, Northern Ireland Prison Population 2022/2023 Data Tables

COPNI conducted in-depth interviews with recognised experts and individuals holding responsibilities in relation to the MCA and analysed publicly available data obtained through Freedom of Information (‘FOI’) requests. Its findings were published in August 2025 in the report Freedom, Care and Wellbeing A Review of Deprivation of Liberty Safeguards 4

Development of mental health legislation in Northern Ireland

The MHO made provision for compulsory admission, detention, and non-consensual hospital treatment of individuals with mental disorders. Unlike the MCA, the Order focused on mental illness rather than decision-making capacity. Admission for assessment (short-term) and detention for treatment (long-term) under the MHO can occur when the person is:

a. suffering from a mental disorder of a nature or degree that warrants his or her detention in hospital for assessment (or for assessment followed by medical treatment); and

b. failing to detain the person would create a substantial likelihood of serious physical harm to him or herself or to other persons.5

Harper et al (2016) define the MHO as ‘traditional mental health legislation … Entry to its powers is through “mental disorder” and risk of harm criteria ’ The MHO makes provision for assessment and treatment based on a set definition of ‘mental disorder’ specified in Article 3. A mental disorder is defined in Article 3 as ‘mental illness, mental handicap and any other disorder or disability of mind’ .

6

The powers of the MHO are centred on external judgement, independent from the person who is deprived of liberty. The application for admission or detention can be made by an Approved Social Worker (‘ASW’) or the person ’ s ‘nearest relative’, and approval is based on external medical assessments. Under the MHO, if the patient presents a mental disorder, the Order sets out powers for a series of external individuals, and none of these powers are limited by the determination of the patient’s mental capacity.

4 Ángel Leira Pernas, Freedom, Care and Wellbeing: Review of Deprivation of Liberty Safeguards (Commissioner for Older People for Northern Ireland, 2025) Available at https://copni org/assets/general/resources/Freedom-Care-and-Wellbeing -Review-ofDeprivation-of-Liberty-Safeguards pdf

5.Michael Potter, ‘Mental Health Law’ in Ciaran White, Northern Ireland Social Work Law (Lexis 2004), Ch 11.

6 Colin Harper, Gavin Davidson and Roy McClelland, ‘No longer anomalous, confusing and unjust: The Mental Capacity Act (Northern Ireland) [2016] International Journal of Mental Health and Capacity Law 22

7 The discussion of Bournewood and Cheshire West is based on the review by Lucy Series in a previous issue of this journal See ‘Liberty Tactics: On the Rise of ‘Deprivation of Liberty Safeguards’’, [2024, Spring] Journal of Elder Law and Capacity.

8 HL v United Kingdom [2004] ECHR 471

9 P v Cheshire West and Chester Council and Anor; P and Q v Surrey County Council [2014] UKSC 19

The need to update mental health legislation in Northern Ireland to include mental capacity resulted from key rulings of the European Court of Human Rights (‘ECtHR’) and the UK Supreme Court, as well as the Banford Review of Mental Health and Learning Disability. 7 8 9 10

According to Article 5 of the European Convention on Human Rights (ECHR), every person has the fundamental right to liberty. However, this right is not absolute, and a person can be lawfully deprived of their liberty on specific grounds and ‘in accordance with a procedure prescribed by law ’ Therefore, although the right to liberty is a basic human right, there are limited circumstances in which it is lawful to deprive someone of their liberty. Article 5 accepts that ‘ persons of unsound mind’ can be deprived of liberty Consequently, people with brain or mental impairments and disorders are regularly deprived of liberty to be provided with care. Depriving people of their liberty to provide them with care is often seen as normal, rational, and sensible. It is usually understood that these detentions are carried out to help the person, and that it is in their best interests to be deprived of liberty, as they will receive the care and attention that they require to enjoy a good life In addition, if no intervention was done, these individuals could have accidents or harm themselves in many ways, hence detentions seem justified to prevent these occurrences.

While this may sound simple, depriving someone of a basic human right presents great complexity Who should decide that a person needs to be deprived of liberty? How does one assess the ‘best interests’ of that person? How will people be protected against arbitrary detentions? In essence, what is a ‘legitimate’ DoL?

Interpretation of Article 5 was fundamentally altered by the ECtHR’s judgment in the Bournewood case The ECtHR established that a DoL depends on objective factors, not on the individual’s compliance with their care arrangements or the professionals’ good intentions. It established that a person subject to ‘continuous supervision and control’ and ‘not free to leave’ , was factually deprived of liberty. As such, it became clear that states had to provide clear procedural protections and oversight when liberty was being deprived under those objective conditions From then on, the absence of any legal framework to protect people who lacked capacity but were admitted to hospitals or care settings and were, in practice, deprived of liberty became known as the ‘Bournewood gap ’ . 12 13

A major concern arising from Bournewood was that existing mental health legislation in the UK and Northern Ireland had become incompatible with Article 5 of the ECHR and the Human Rights Act 1998. As a consequence, the Bamford Review of Mental Health

10 Department of Health, Social Services and Public Safety (2007) Bamford Review: A Comprehensive Framework for Mental Health and Learning Disability Law in Northern Ireland.

11 Council of Europe, European Convention on Human Rights, as amended by Protocols Nos 11, 14, 15 ETS No 005 (Nov 1950)

12 HL v United Kingdom [2004] ECHR 471

13 Lucy Series op cit, 10

and Learning Disability (‘the Bamford Review’) was established in 2002 to examine the law and policy that affected people living with a learning disability and mental health issues in Northern Ireland.14

The Bamford Review found that human rights principles were not being properly upheld for individuals with mental illnesses and learning disabilities. The mere presence of a mental disorder was enough to trigger the powers of the MHO, and to justify forced admission and detention In settings such as care homes where admission has not been forced under the MHO there were no legal protections in place. The Review emphasised the importance of respecting an individual's decision-making capacity, regardless of whether they have a physical or mental illness.

15 16

Another significant milestone in the development of mental capacity legislation in the UK was the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’), which the UK ratified in 2009.17

Perhaps the most important milestone affecting mental health law in the UK and Northern Ireland was the 2014 Cheshire West case The two criteria established by the ECtHR in Bournewood as the cornerstone of a DoL (which became known as the ‘acid test’) continuous supervision and control, and the inability to leave—were affirmed by the UK Supreme Court in Cheshire West In this ruling, Lady Hale maintained that there should be no difference between people with and without disability regarding the conditions of what constitutes a DoL. A definition of ‘deprivation of liberty’ should be universally applied to anybody, regardless of capacity, care arrangements, the intention of carers, or location. Therefore, according to the ‘acid test’, any person who is under constant supervision and control and not free to leave is subject to a DoL 18 19

The MCA enacted substantial provisions to address the gaps resulting from the interpretations of human rights legislation affecting people who lacked or were suspected to lack capacity. Under the MCA, assumptions cannot be made based on a disease or a condition, and decisions must be made considering capacity Therefore, there will be instances where individuals who would have qualified for involuntary detention under the MHO will not meet the threshold under the MCA. For the MHO, the presence of a mental disorder is the factor that activates the legal protections for forced assessment and admission into hospital, or detention for treatment.

14 Harper et al, op cit, 58

15 Department of Health, Bamford Review: A Comprehensive Legislative Framework (2007)

16. Harper, op cit, 59.

17 ‘In 2009 the UK signed up to a United Nations agreement that states deprivation of liberty cannot be justified by the existence of long-term physical, mental, intellectual or sensory impairments’ , Harper, op cit, citing Peter Bartlett ‘The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law’ [2009] Psychiatry 8

18. P v Cheshire West and Chester Council and Anor [2014] UKSC 19.

19 P v Cheshire West and Chester Council and Anor; P and Q v Surrey County Council [2014] UKSC 19

20

In contrast, while the MCA preserves the requirement that a mental or brain disorder must be present, it also requires that the person lacks capacity to make decisions about their care. Therefore, prior to depriving someone of their liberty to provide them with care and treatment, a series of assessments must be conducted to ensure that the person lacks capacity. Assumptions cannot be made based on any condition or disorder, and everyone is assumed to have capacity until an evaluation has been conducted confirming otherwise.

The MCA also expands its protections to other settings. The MHO does not make provision for residential care or nursing homes. However, it was obvious that there were instances in which individuals were effectively being deprived of liberty in these settings including through physical or chemical restraint.

The (DoLS provisions of the Act pertain to individuals with a disorder or impairment of the brain or mind, who, as a consequence, lack decision-making capacity and are at risk of harm It provides a framework by which such individuals can be deprived of liberty in accordance with a legal procedure that provides them with safeguards. The legislation is meant to protect individuals against arbitrary detention and baseless assumptions and aims to ensure that DoLS are always done in the person ’ s best interests. It also aims to ensure that help and support are provided to the person, and that the person ’ s views and values are placed at the centre of the process

Implementation of Capacity Legislation: Deprivation of Liberty Safeguards Process

The principles of a piece of legislation do not determine in full its practical implementation. Many groups are involved in ensuring the correct implementation of a statute. Implementation depends on policy, available resources, service demand, and the capacity of the system to respond to unexpected issues In the case of the MCA, it has been implemented in the context of the well-publicised struggles of the health and social care sector of Northern Ireland, including rising costs and limited funding.

The MCA presents five principles designed to guide the entire process of safeguarding individuals against arbitrary detention A DoL is determined in light of the ‘acid test’, as provided in Cheshire West, and may be authorised if the person lacks capacity to make decisions about their care arrangements, is at risk of serious harm, and it is determined that the DoL would be in their best interests with particular regard to their past and present wishes. 21

20 The presence of a mental disorder, confirmed through a medical examination, is a required condition for depriving someone of their liberty under the MCA, but failing a capacity assessment on its own is not enough There may be cases in which a person is found to lack capacity but is not deprived of liberty because no relevant medical condition is identified. This safeguard helps to prevent situation in which individuals might deliberately fail a capacity assessment or be coerced into doing so

21 The principles are: 1 No-one should be treated as lacking capacity unless proven they do; 2 No assumptions can be made; 3 Help and support must be provided; 4 No assumptions can be made because of unwise decisions; and 5 All acts and decisions must be made in the person ’ s best interests.

To ensure compliance with human rights legislation, the MCA makes provision for a series of safeguards, which are meant to guarantee that nobody is deprived of their liberty unlawfully and arbitrarily, and that all DoLS align with Article 5 of the ECHR and Cheshire West. While certain safeguards may be bypassed under emergency provisions, all safeguards must be fully observed before a person can be deprived of their liberty under a full Trust Panel authorisation. If the health and social care staff providing care for a person believe that the person should be deprived of liberty due to an unacceptable risk of serious harm, they must make a referral to the relevant Trust. If it is determined by a Health Trust that a DoL may be needed, the DoLS process is commenced.

Emergency provisions

Before all safeguards are fully completed, an important intermediate step may be required The process that ends with the full authorisation of a DoL by a Trust Panel can be lengthy, care homes often find themselves in situations in which there is an immediate risk of harm to the person, and all the safeguards cannot be completed quickly enough If the care staff believe that a person must be deprived of their liberty as a matter of urgency and before all the safeguards can be completed, they can implement emergency provisions This occurs when the person is deprived of liberty, but a full authorisation has not yet been obtained.

In Northern Ireland, approximately 1 in 4 people who are deprived of liberty, and about 6% of all care home residents, are under emergency provisions. To implement emergency provisions, staff are protected from liability by applying two general safeguards reasonable belief that the person lacks capacity and reasonable belief that the deprivation is in P’s best interests in addition to the Prevention of Serious Harm (‘POSH’) condition. 23 24

Emergency provisions are DoLS without a full safeguarding process, save for the two general safeguards that include the staff’s ‘reasonable beliefs’. This likens emergency provisions with the criteria for detention under the MHO. As shown, the issue of capacity is not addressed under the MHO, which relies on ‘those tasked to carry out duties and functions under the Order’ to have consideration for the patient’s capacity. For the MCA to be substantially different to the MHO, safeguards must be in place. Without them, the criterion for detention is based on the same principle as the MHO practitioners’ beliefs and due consideration. 25

22 P v Cheshire West and Chester Council and Anor; P and Q v Surrey County Council [2014] UKSC 19

23. Data obtained through an FoI request to the HSC Trusts.

24 This condition is a safeguard, and it is also assessed in the Medical Report (Form 6) Department of Health, Mental Capacity Act (Northern Ireland) 2016 – Form 6: Medical Report (Statutory Form) (2019)

25 Department of Health, Draft Revised Code of Practice: Mental Health (Northern Ireland) Order 1986 (2025)

26

When emergency provisions are in place and a Trust is notified, the Trust must ensure that the remaining additional safeguards — formal assessment of capacity, consultation with the nominated person, and Trust Panel authorisation are completed as soon as possible. Despite this general recommendation, there is no statutory timeframe for their completion This opens legally obscure situations, especially in circumstances in which there are staff and resourcing pressures. It also prompts the question of ‘what is the adequate maximum length of an emergency DoL?’.

Waiting times for full authorisations of individuals under emergency provisions have been reported as an issue by research participants. According to the data provided by some Trusts, approximately 1 in 4 emergency provisions are likely to be in place for more than six months. In discussions conducted with Trusts as part of this review, they highlighted financial and workforce challenges. For instance, a representative from the SHSCT highlighted that most emergency provisions for those cases between two to six months and six to 12 months are within the 7 Integrated Care Teams services, which face staffing deficits, alongside staffing shortages in Memory and Learning Disability services 27

In general, most stakeholders have suggested that the length of emergency provisions may be a result of resource pressures, and a member of RQIA stressed that emergency provisions were among the most concerning issues identified through RQIA inspections, despite efforts and growing efficiency by Trusts in speeding up the process.

The issue of emergency provisions is legally relevant An emergency provision is acceptable and human rights compliant when its duration is limited. The longer an emergency DoL is, the more questionable its legality becomes Emergency provisions also highlight the crucial but often overlooked aspect of resources when enacting legislation. If the DoLS process currently conducted solely by Trusts—is not adequately funded and resourced and the process is delayed, the Act will function in a similar way to the Order.

26. Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019). 27 This figure is based solely on the information provided by the NHSCT and the SHSCT in response to an FoI In the NHSCT, 25 8% (85 out of 330 cases) of emergency provisions had been in place for over 6 months In the case of the SHSCT, 22 9% extended for more than 6 months The Belfast Trust reported 28 emergency provisions, all of them shorter than two months The latter described its MCA model in the following terms: ‘Since 2021, when a referral is made to the Mental Capacity Act Service in Belfast Trust, the patient is placed under emergency provisions until the DoLS process has commenced ’This is significantly different to the approach of other Trusts, so it is not considered comparable

In only five years of implementation, the public authorities responsible for conducting safeguards are running behind reasonable timeframe expectations despite not all the provisions of the Act having been implemented. If resource issues are not resolved, and if reliance on emergency provisions continues or increases, many of the situations that the law sought to prevent will persist, although under legal cover.

Additional safeguards: Capacity Assessment, Nominated Person and Trust Panel

When a care home makes a referral to a Health Trust about an individual who is suspected to require a DoL, the Trust must ensure that the remaining additional safeguards formal assessment of capacity, consultation with the nominated person, and Trust Panel authorisation are completed as soon as possible 28

Capacity Assessment

The central safeguard and first step of the DoLS process will consist of assessing capacity The definition of lacking capacity always refers to the matter or act in question. A person lacks capacity whenever they are unable to make a decision ‘ on that matter’, that is, a person ‘lacks capacity’ about the DoL. A practitioner will test if a person lacks capacity through the Formal Capacity Assessment, which consists of three elements, all of which must be met: the Functional Test, an Impairment or Disturbance Test , and the Causal Link. 29 30 31 32

A capacity assessment requires a suitably qualified professional who has sufficient experience and training. If the assessor concludes that the person (P) lacks capacity, the process will move on towards completion of the remaining safeguards. If substitute decision-making is needed, ‘ any act done or decision made for or on behalf of P must be done in P’s best interests.’ The best interests safeguard aims to gather a holistic understanding of P’s views, beliefs, values, will and preferences before lacking capacity, so that any decision or act made for or on behalf of P would be in line with P’s wishes if P had capacity. 33 34 35

28. Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019).

29 Ibid, s 5 4

30 Department of Health, Mental Capacity Act (Northern Ireland) 2016 Form 1: Statement of Incapacity (Statutory Form) (2019)

31 For some examples of causes of impairment or disturbance, see Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019), s 5.18.

32 Mental Capacity Ltd “Mental Capacity Act (Northern Ireland) 2016: Overview Part 2 ” Mental-capacity co uk, 29 Apr 2023 Available at: https://mental-capacity co uk/mca-northern-ireland-2/

33 According to the Code of Practice, the professions which can conduct capacity assessments are the following: social worker, medical practitioner, nurse or midwife, occupational therapist, speech and language therapist, dentist, and practitioner psychologist Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019), s 8 9

34 Ibid, s 6 1

35. Ibid, ss 6.15 to 6.36.

The practitioner completing the application must try to capture as accurately as possible P’s past and present wishes through the participation of P and people relevant to P’s life. Special attention must be paid to the opinion of the ‘nominated person ’ , who must be consulted about any decisions made regarding P. The nominated person is not a decision-maker, and it is meant to represent P’s voice throughout the DoLS process.36

‘Special regard’ to the ‘wishes, feelings, beliefs, values and any other factors that P would have considered relevant’ must be given top priority. Nevertheless, ‘special regard’ is not absolute when there are practical reasons that make it unreasonable However, if a decision is made against P’s past and present wishes, that decision must be justified. 37 38

The legislation and the Code of Practice are not specific as to the depth of the special regard requirements. For example, the Code of Practice states that the practitioner conducting the Best Interests Determination Statement should ‘consult and take into account the views of relevant people’ as far as it is ‘practicable and appropriate’ , with consideration of the difficulties in contacting and gathering the views of these individuals. The Code of Practice also states that ‘less restrictive actions’ should be given consideration, including the use of technology or personalised care to avoid a DoL. However, the Best Interests Determination Statement ‘does not require arrangements that are impossible or that would not be normally put in place’ . This suggests that less restrictive options may be impacted by the availability of resources like technology and staff. 39 40 41 42

In sum, the Code of Practice is non-specific as to the extent the practitioner should go in consideration of the ‘special regard’ factor. Indeed, stakeholders interviewed for this study have reported that some practitioners go to significant lengths trying to capture special regard as compared to other practitioners, and this may be influenced by available resources and existing pressures put on practitioners.

Nominated Person

In assessing best interests, the ‘nominated person ’ plays a great role. The introduction of the nominated person has been widely regarded as a positive development, offering individuals greater control as compared to the MHO by allowing them to choose someone who can represent their values and preferences if they lose capacity.43

36 Department of Health, MCA Nominated Person

37 Department of Health, Mental Capacity Act (Northern Ireland) 2016 Deprivation of Liberty Safeguards Code of Practice (2019), s 6.24.

38 Ibid, s 6 25

39 Ibid, s 6 25

40 Ibid, s 6 29

41. Ibid, s 6.31.

42 Ibid, s 6 31

43 “Your Rights in Health ” NI Direct, Northern Ireland Government Available at: https://www nidirect gov uk/articles/your-rightshealth

However, several issues were highlighted by research participants First, the nominated person is often mistaken for a decision-maker, and professionals face challenges in ensuring the nominated person fully understands their responsibilities. The role can also create tension, confusion, or conflict within families and friendship circles, particularly where differing views exist. Finally, the nominated person is given significantly greater legal authority than anyone else in the person ’ s personal circle, including rights in relation to Review Tribunal referrals, which may exacerbate feelings of exclusion.44

Trust Panel

The last one of the 4 basic additional safeguards is the authorisation of the DoL by a Trust Panel The information compiled in the DoLS forms by the relevant practitioners must be evaluated by a group of three specially trained HSC Trust staff that meet regularly to assess DoLs applications in their area known as a Trust Panel. To approve the DoL, the Trust Panel must confirm that all authorisation criteria are satisfied: (1) the person lacks capacity, (2) the DoL would be in the person ’ s best interests, (3) appropriate care or treatment will be provided to the person where the DoL will happen, and (4) the POSH condition is met. 45 46

TABLE 1. Trust Panel Applications by outcome (2020-2024) 47

44.The discussion of this paragraph arises from the evidence provided in conversations with the stakeholders from the RCN, QUB, the PCC and the OAGNI

45 According to the Code of Practice, the panel will consist of one medical practitioner, one approved social worker and one other healthcare professional Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019) s, 14.4.

46 Ibid, s 11 6

47 Data obtained in an FoI response issued by four HSC Trusts (NHSCT, SHSCT, WHST, BHSCT) The data covers the period between December 2019 and August or September 2024 (date dependent on when the Trusts issued their responses)

process

If a full authorisation has been granted, the MCA guarantees the right of P to review the decision This right consists of a review of the case by the Review Tribunal an independent judicial body not linked to any Trust. If P is deemed to lack capacity to apply to the Tribunal and the DoL is authorised by the Trust Panel, the case will be automatically referred to the Office of the Attorney General for Northern Ireland (OAGNI), and the Attorney makes a decision to refer or not the case to the Tribunal. The Tribunal then assesses the authorisation to make sure that all the legal obligations have been adequately applied in the decision to authorise the DoL. After reviewing, the Tribunal adjudicates on whether the DoL should continue or cease. There are several people who can apply to the Tribunal to review an authorisation, including P (if they have capacity), the nominated person (if authorised by P when P has capacity, or when P does not have capacity), the OAGNI, the HSC Trust, the Department of Health (DoH), and the Master (Care and Protection).

50

Despite the range of individuals that have power to refer to the Review Tribunal, the majority of referrals (83.12%) are made by the OAGNI. If the members of the Review Tribunal have reasons to believe the DoL has been improperly authorised, they may request additional information from the Trust to clarify areas of concern. However, it is very rare that the Tribunal revokes a DoL. The number of cases in which the Review Tribunal has revoked an application is very small only four authorisations have been revoked from December 2019 to August 2024. 51 52

Implementation issues, challenges and resources

The way the Act works in practice depends not only on the adequacy of the legal text, but on a series of organisational and resource factors One of the most relevant ones is the responsibility currently assigned to Trusts in relation to conducting assessments, completing forms, and authorising the DoL. This represents a significant implementation difference with England and Wales , where managing authorities complete applications and submit them to the Local Authority. 53

48.Department of Health, Mental Capacity Act (Northern Ireland) 2016 – Form 7: Statement that the Person lacks Capacity whether an Application should be made to the Review Tribunal (Statutory Form) (2019)

49 Gerard Lynch, Catherine Taggart and Philip Campbell, ‘Mental Capacity Act (Northern Ireland) 2016’, [2017] BJ Psych Bulletin 41

50 Department of Health (2019), op cit, s 15 6-15 8

51. Data obtained through an FoI request.

52 The exact number of authorisations revoked by the Tribunal was not provided in the FoI responses submitted to COPNI by the Tribunal The Tribunal confirmed that fewer than five authorisations were revoked every year In an interview with the MCA Implementation Team of the DoH, Phil Hughes, Professional Advisor to the DoH, confirmed that the number to be four since December 2019.

53 Helen Marshall and Sally Sprung, ‘The Mental Capacity Act 10 Years on – The Key Learning Areas for Healthcare Professionals’ [2018] Nursing: Research and Reviews

54

The approach in Northern Ireland has advantages such as reducing the risk of DoLS activity being influenced by bed pressures, and standardising procedures but it also presents challenges. Research participants stressed that the workload for Trusts associated with the DoLS was higher than initially expected. Despite a 20% increase in the number of social workers between 2015 and 2024, and a 27% rise in medical staff, Trust representatives felt that challenges around recruitment and retention remain significant.

There were participants who were concerned that these pressures affected the quality of the assessments conducted. For instance, while the Code of Practice states that the practitioner completing the assessment should be familiar with P and ideally, it should be the person implementing the DoL (‘D’) to better capture best interests, research participants stressed that due to resource pressures, the professionals completing assessments are often unfamiliar with P and P’s circumstances

The DoH explained that care homes were not involved in completing MCA forms because of the pressures created by Covid-19. However, ongoing pressures within the DoH and Trusts raise the question of whether care homes should assume a greater role in assessing capacity and best interests A key concern of this approach is whether resource-pressured care homes could complete DoLS assessments objectively rather than as a way to address bed pressures. Ultimately, the Trust Panel would remain responsible for determining the objectivity and appropriateness of any DoL, which should ensure the protection of P.

Another important finding of the research was the statistical variations noted in the activity levels of Trusts regarding the MCA. Drastic reductions and increases in DoLS activity of more than 300% difference from one year to the next have been observed in some areas. Similarly, the proportion of live DoLS in operation as a proportion of care home placements is up to four times higher in some Trusts than in others. For instance, the percentage of live care home DoLS in the WHSCT in relation to the total number of care home placements (40.05%) is approximately 4 times higher than in the SHSCT (11 92%) These differences are hard to explain and remain concerning, as they may point at structural differences of interpretation.

54 Department of Health, Northern Ireland Health and Social Care (HSC) Workforce Consensus, March 2005 to March 2024

55 Department of Health, Mental Capacity Act (Northern Ireland) 2016, Deprivation of Liberty Safeguards Code of Practice (2019), ss 6.6-6.8.

56 An anonymous source from an HSC Trust said that ‘the ideal of the social worker who knows P conducting the assessments is often not happening in practice’

57 Between 2021 and 2022, the BHSCT saw a 305% reduction in TP applications, while a 123% increase was seen between 2022 and 2023. (Data obtained through a FoI request to the BHSCT by COPNI).

58 This information was obtained through an FOI request to the Trusts

Phased implementation is also creating significant difficulties, according to research participants. Until the MCA is fully implemented, both the MHO and the MCA continue to operate in Northern Ireland, and where the MHO applies, it must be used. This has led to situations where practitioners must work with 2 separate legislative frameworks that address nearly identical circumstances, and in some cases, the same hospital patient may be processed under both the MCA and the MHO within a short period of time

Finally, research participants from Trusts expressed frustration about their extension review obligations An authorisation approved by the Trust Panel lasts for 6 months and can be extended for an initial period of 6 months, and twelve months thereafter. This requires Trusts to conduct regular extensions of all DoLs in their area The number of annual extensions conducted has increased steadily since the implementation of the Act, and the proportion of work that Trusts dedicated to them in 2023-2024 was much higher than it was in the period 2020-2022 Given that extensions must be conducted regularly throughout a person ’ s entire life while deprived of liberty, it seems unlikely that a substantial reduction in the extension workload will occur A Trust representative that participated anonymously quantified the amount of work required by their Trust to conduct extensions as approximately 400 hours per month. 59

Since 2021, the number of monthly extensions completed by Trusts has increased by an average of 8.5% per annum. Extensions now serve as the primary driver of DoLS activity for Trusts and for the OAGNI. It is likely that this rate of increase in the extension activity of Trusts will continue, and, therefore, the volume of extensions will keep growing in the future

59 Mental Capacity Act Western Health & Social Care Trust Available at: https://westerntrust hscni net/about-the-trust/mentalcapacity-act/

60. Data obtained through an FoI request sent to and responded by all HSC Trusts.

61 Data obtained through an FoI request sent to and responded by all HSC Trusts

62 Data obtained through an FoI request sent to and responded by all HSC Trusts

TABLE 2. DoL extension authorisation (across all HSC Trusts) 62

The extensions conducted by Trusts and reviewed by the OAGNI are an additional safeguard for P. However, stakeholders expressed concern that, in most cases, P’s circumstances remain unchanged, and that resources are being used in extension reviews where the possibility of P regaining capacity is non-existent. Stakeholders also reported that in these situations for instance, if P’s condition is irreversible extensions can be frustrating for family members, who see little value on them

Extensions are also less likely to require review by the Review Tribunal, as many cases report no changes in the person ’ s condition. Since 2021, as the proportion of cases reviewed by the OAGNI that are extensions grew, the proportion of cases referred to the Review Tribunal decreased.64

While acknowledging the complex balance between rights and efficiency, participants suggested that there is a qualitative distinction between cases of individuals with fluctuating capacity (including those who may improve) and those whose condition in terms of capacity will not improve. They stressed that the lack of priority and focus given to those whose condition may improve creates a significant resourcing challenge and administrative burden

63 Based on the data obtained in an FoI response submitted by the BHSCT The other Trusts also submitted data on extensions, but the data from BHSCT is the only one that covered 2024 in full to be compared with other years.

64 Information obtained through an FoI to the OAGNI

TABLE 3. Number of extensions per year (BHSCT) 63

The Mental Capacity framework: reflections

While the MCA is a progressive and advanced piece of legislation, it is necessary to evaluate its current functioning. A piece of legislation like the MCA is neither simple to interpret, nor easy to execute. The operational realities of the MCA differ significantly from its theoretical and legal principles, and the costs associated with its implementation are high and often unpredictable

From its inception, policymakers and legal scholars have praised the MCA for its innovative and person-centred principles, placing capacity and best interests firmly at the centre of the process. However, questions remain about how effectively these principles operate in practice. If the Act is applied inadequately, it risks failing to deliver the human rights safeguards it was designed to secure For this reason, practical implementation is just as important as the Act’s theoretical, policy, and legal foundations.

A key finding of this review is that resource pressures are creating significant problems across crucial areas. There is strong evidence that Health Trusts are unable to complete Trust Panel applications promptly, resulting in individuals being detained for longer than what can reasonably be considered an emergency response. Resource constraints are also contributing to other important issues, including practitioners completing forms without adequate knowledge of P or P’s circumstances and, in some cases, lower thoroughness in assessments partly linked to staff burnout. Additionally, resource limitations have delayed the implementation of key safeguards This, in turn, contributes to confusion due to dual legislation operating in hospitals. Since legislation is enforced by individuals, they must have the capacity and resources to do so effectively, but those responsible for enforcing the MCA are being placed in a difficult position

On a further note, the review conducted has shown the inadequacy of the data collection by some public authorities, as some HSC Trusts struggled to compile basic information about their DoLS activity when requested. In this regard, Trusts and the DoH should expand the amount and quality of the available data

The challenges in implementing the MCA in Northern Ireland arise from a range of sources Some issues are directly related to the Act For instance, some practitioners observed that substantial changes to the extension process and the number of extensions would require amendments to primary legislation Other challenges are related to legal interpretations. This is the case, for instance, of ‘valid concern. ’ Recently, the OAGNI and DoH have sought clarification from the Supreme Court on the meaning of ‘lack of valid consent’ under Article 5 The interpretation of ‘valid concern ’ is determinant of the situations in which a DoL will be required, and cannot be overridden by practitioners, Health Trusts or the DoH Legislative changes are complex and lengthy, and if any resourcing issues are related to legislation, it is unlikely that the situation will change in the near future.

By contrast, there are workload challenges that are not caused by legislation This is the case of the limited involvement of the managing authority in completing Trust Panel application forms. The responsibility of completing forms is the result of a decision made by the DoH and could be revised without changes to legislation. Therefore, there remains considerable scope within the existing framework to streamline processes and ease the resource burden on Trusts without the need for legislative changes

Summary

Since its initial drafting, the MCA has been praised for being a progressive and groundbreaking piece of legislation, compared to other similar pieces of mental health and mental capacity legislation Unlike in other UK jurisdictions, when fully commenced, it will merge mental health and mental capacity legislation. However, despite its successes, the MCA in Northern Ireland is a stark reminder that legislation is inextricably linked to implementation processes and resources. Existing safeguards without the necessary backing are safeguards in name only.

Deprivation of Liberty Safeguards in Ireland: an ad hoc approach to the protection of the vulnerable Ciarán

Craven, SC, Bar of Ireland

INTRODUCTION

Where a question of policy has been determined over a long period of time, it is not unreasonable to expect that, in its final iteration, the solution would be comprehensive, internally coherent, effective, efficient and workable. Where that question relates to a most basic right, i.e. to participate meaningfully in civil society as one wishes, to have one ’ s agency recognised, autonomy respected, and decisions effected, viz. one ’ s decisions concerning fundamental aspects of how one wishes to live – to decide as to healthcare and treatment, where to live, how to manage personal and financial affairs – it is trite to observe that it is essential. It is irrelevant how this basic right may be characterised, or what its source may be, whether arising from constitutional or international human rights norms, or framed, more generally, in terms of the right to have one ’ s dignity respected by reason solely of being human. It is irrelevant, too, that the issues that may arise, in a particular set of factual circumstances, may be difficult to resolve, or call for fine or prudential judgement. Difficulty is not a justification for avoiding (or delaying) the protection and vindication of individual fundamental rights.

This is not a concern that is merely academic. Our population is increasing; the percentage of the population and the absolute number of people over age 65 are increasing, in all parts of this island. The projections in relation to the prevalence of dementia suggest a massive increase over the next 20 years

A prolonged legislative gestation in Ireland gave rise, ultimately, to the Assisted Decision-Making (Capacity) Act 2015 (‘the 2015 Act’). It would be reassuring to suggest that it provided a best-inclass solution, a panacea for past, present and future ills, abuses and potential abuses. History and practice, however, suggest a less kind judgement. Even during its final parliamentary passage, one parliamentarian observed, with, perhaps, unintended understatement: ‘It has taken 145 years to get to a far from perfect situation’ . 1 2

1 The journey, for practical purposes, commenced in 2003 with a Law Reform Commission Paper Law and the Elderly (LRC CP 232003), followed by a further consultation paper in 2005 Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) and report in 2006 Vulnerable adults and the law (LRC 83-2006), the publication in September 2008 of a Scheme of Mental Capacity Bill, and the introduction of the Assisted Decision-Making (Capacity) Bill of 2013; this was enacted in December 2015, and amended and repealed in part by the Assisted Decision-Making (Capacity) (Amendment) Act 2022, before it was commenced: the amended legislation was commenced on 26 April 2023

2. Dáil Debates 17/12/2015 Vol 901 No 3. The 145 years referred back to the passing of the Lunacy Regulation (Ireland) Act 1871.

And, far from perfect it is. While providing for a range of decision-supports designed to protect the vulnerable whose decision-making capacity may be impaired, or liable to be overborne, and for mechanisms to be deployed where a person is found to lack decision-making capacity in one or more decisional domains, it fails to engage – other than obliquely – how questions of deprivation of liberty are to be addressed

THE SCOPE OF THE 2015 ACT

The Act’s principal concern is that of general decisional capacity, on an issue- and time-specific basis. It does not affect the law on capacity and consent in specific areas (where it is otherwise well developed). Thus, it does not alter or amend the law relating to the capacity or consent required for issues arising in a family law and relationship context, viz. marriage, civil partnership, judicial separation, divorce or a non-judicial separation agreement, the dissolution of a civil partnership, the placing of a child for adoption, the making of an adoption order, guardianship (of infants) or having sexual relations. Nor does it affect the law in relation to capacity to serve as a member of a jury, or the law on testamentary capacity. As to contractual capacity, it modifies the existing law and provides that a person who lacks capacity to enter into a contract for the sale of goods or services is required to pay the supplier a reasonable sum for goods or services supplied at their request only if the goods or services are suitable to the person ’ s condition in life, and actual requirements. 3 4 5 6

The 2015 Act also incorporates into Irish domestic law the Hague Convention on the International Protection of Adults. Where the United Kingdom similarly ratified the Convention, but declared that it was to extend to Scotland only, such that it does not apply to Northern Ireland, or England and Wales, the potential for procedural and practical difficulties is clear. Irish rules of private international law in relation to persons with impaired capacity are not well developed and the Lunacy Regulation (Ireland) 1871 Act which dealt with inter-jurisdictional questions during the Union with Great Britain no longer applies. 7 8 9

3 See, in this specific regard, In re AB ,unreported, Circuit Court (HHJ Shannon) (04/11/2025)

4 ADMCA 2015 s 138

5. ADMCA 2015 s 140.

6 ADMCA 2015 s 137, which effects amendment of the Sale of Goods Act 1893 s 2 in respect of capacity to buy and sell

7 Signed by Ireland on 18 September 2008, ratified on 31 May 2024 and entered into force on 1 September 2024, subject to a single declaration that requests under art 32(1) be communicated to its authorities only through its Central Authority (art 32(2)) and a single reservation objecting the use of the French language (arts 51(2) and 56(1)).

8 Signed 1 April 2003, ratified 2 November 2003, entered into force 1 January 2009; the declaration was by reference to art 55 and provided that it may be modified by submitting another declaration at any time Requests for information relevant to the protection of an adult made under art 32(1) is to be communicated to the Scottish authorities only through the Scottish Central Authority: see, Adults with Incapacity (Scotland) Act 2000 s 85 and Third Schedule.

9 See, generally, William Binchy, Irish Conflicts of Law (Butterworths (Ireland) 1988) ch 18

The Range of Decision Supports

The 2015 Act provides for a range of decision supports. The dramatis personae of those who may be involved in supported (or substitute) decision-making under the Act is longer than in other jurisdictions. It includes decision-making assistants, co-decision-makers, attorneys under enduring powers of attorney, designated healthcare representatives and decision-making representatives (and the courts) A detailed discussion of such agents is beyond the scope of the present article However, two levels of supported decision-making, where a person considers that his or her capacity is in question, or may shortly be in question, but where a declaration as to capacity has not been made, merit noting, viz. decision-making assistants and co-decision-makers. As to the first of these, a decision-making assistant is not permitted to make a decision on behalf of the other person A relevant decision taken by a person with the assistance of his or her decisionmaking assistant is deemed to be taken by that person for all purposes. In many ways, this merely codifies and gives statutory, regulated expression to informal bona fide arrangements in many, particularly, family circumstances. The principal difference between the statutory and informal arrangements is that, under the former, complaints fall to be investigated and addressed by the independent regulator, and, if needs be, by the Circuit Court 10 11

A co-decision-maker must, in the making of a joint decision, acquiesce with the wishes of the other person in respect of a relevant decision and may not refuse to sign certain documents, where a decision requires signature, ‘unless it is reasonably foreseeable that such acquiescence or signature will result in serious harm’ to the person or another person Again, complaints about co-decision-makers fall to be investigated and addressed by the independent regulator, and, if needs be, by the Circuit Court.

12

These supports are important as, in any application for a declaration as to capacity, it requires to be set out why any other appropriate, practicable and less intrusive steps taken previously failed to achieve the sought benefit and why, in the opinion of the person applying for the declaration, no other appropriate, practicable and less intrusive steps to achieve that benefit remain to be taken. If a decision cannot be made even with the assistance of a co-decision-maker, a courtappointed decision-making representative is charged with doing so.

DEPRIVATION OF LIBERTY

Despite its prolonged legislative gestation and the range of decision supports provided, the 2015 Act makes no express provision, however, for deprivation of liberty, and contains no deprivation of liberty safeguards. All provisions in relation to restraint, limited to exceptional emergency circumstances only, in the 2015 Act as originally passed, were repealed (without having been

10 ADMCA 2015 s 14

11 ADMCA 2015 s 15

12 ADMCA 2015 s 26

13. ADMCA 2015 s 19.

14

commenced) by the Assisted Decision-Making (Capacity) (Amendment) Act 2022. It was never the case that the legislation sought to permit detention (as distinct from emergency restraint). Thus, despite the advances made in seeking to regularise how questions of capacity simpliciter are addressed, there are no clear statutory mechanisms by which those with impaired capacity who require to be detained may be detained or how those who are de facto detained are to be protected; there is no statutory oversight regime.

The

previous Statutory Regime: Wardship (‘the jurisdiction in lunacy’)

The jurisdiction over persons with impaired capacity, albeit referred to as the jurisdiction ‘in lunacy’, vested in the High Court by the Courts (Supplemental Provisions) Act 1961 section 9, contemplated, and in practice provided for and effected, detention of persons under the court’s protection This provision, curiously, was not repealed by the 2015 Act The reasons are far from clear and may well represent no more than oversight; the courts, however, have sought to advance their own (albeit somewhat contorted) reasoning Be that as it may, when faced with the express question of whether the courts, nevertheless, retained a residual power under this statutory jurisdiction (outside of any ‘wardship’ jurisdiction) to detain a person after the commencement of the 2015 Act, the Irish Court of Appeal answered in the negative, holding that the provision had been impliedly repealed. 15 16 17

Although the question arose in the very specific context of the detention of a ward of court after the commencement of the 2015 Act, and who had not been detained as of that date – different provisions apply in respect of those who were so detained – it has later been held to be of general applicability. Thus, the statutory jurisdiction provided for by the 1961 Act cannot be deployed to detain any person after the date of commencement of the 2015 Act, i.e. 26 April 2023. Even in this, however, the decisions of the High Court of Ireland have not been wholly consistent

18

19

Detention under the Mental Health Act

The 2015 Act provides that where an issue arises in the course of an application under the Act, or otherwise in connection with its operation, as to whether a person who lacks capacity is suffering from a mental disorder, the procedures provided for under the Mental Health Act 2001 (‘the 2001 Act’) apply in

14 ADMCA 2015 ss 44(5)-(7), 62(1)-(3), deleted by ADMCAA 2022 ss 37 and 3, respectively In HSE v MT [2025] IEHC 440, O’Donnell J observed (para 358): ‘It is telling that, prior to its commencement, the 2015 Act was amended in a way that removed certain provisions that appeared to provide for restraint and restriction, and that highlights the essentially facilitative rather than restrictive theory underpinning the Act That character is encapsulated in the guiding principles in section 8 of the 2015 Act’

15 Only two repeals were effected by the 2015 Act: Marriage of Lunatics Act 1811 (which rendered the marriage of a person under the court’s protection (a ward of court) void) and the Lunacy Regulation (Ireland) Act 1871, which regulated the exercise, especially in relation to property, of the wardship jurisdiction

16 See, In re KK (No 1) [2023] IEHC para 111 and In re KK [2024] IECA 242, para 81

17 In re KK [2024] IECA 242

18. HSE v ND [2025] IEHC 86, where O’Donnell J held (at para 53) ‘ . . . following the commencement of the 2015 Act, section 9 of the 1961 Act no longer operates to permit orders for detention and/or treatment to be made in respect of adult persons who lack the capacity to make the requisite decisions’

19 See, HSE v AJ [2024] IEHC 166, where Dignam J made orders detaining a young adult with autism in a private residential setting under the old statutory jurisdiction, albeit before the determination of the Court of Appeal in KK.

20 21

relation to any proposal to detain that person. Thus, if a person lacking capacity has a ‘mental disorder’ within the meaning of the 2001 Act, and it is necessary to detain that person, its procedures must be followed, and the person may only be detained in an ‘approved centre’ – for practical purposes, generally an acute psychiatric unit. It is unlawful to detain a person with a mental disorder in any place other than an ‘approved centre’ It is the case, of course, many of those suffering from impaired capacity do not suffer a mental disorder (within the meaning of the 2001 Act) and yet may require to have their liberty restricted, whether for their own protection or the protection of others Absent a mental disorder, they are not amenable to detention under the 2001 Act.

The Inherent Jurisdiction of the High Court

22

Where the only statutory provision providing for the detention of persons with decisional impairment, absent a ‘mental disorder’, has now been held to have been impliedly repealed, the only mechanism available is pursuant to the inherent jurisdiction of the High Court The 2022 amendments of the 2015 Act provided that ‘[n]othing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity’ . 23

What is ‘Inherent Jurisdiction’?

The first question that arises is what is meant by ‘inherent jurisdiction’, where ‘[t]he term has been used to describe two different concepts: in broad terms, the first relates to the powers of courts to administer the business before it, and the second relates to the more fundamental subject matter constitutional jurisdiction of the High Court’. (emphasis in original). What is engaged, in this context, is ‘the constitutionally mandated subject matter jurisdiction of the High Court to make orders in relation to the care, detention and treatment of vulnerable adults who are found to lack capacity’. 24 25

Such a provision can properly only be regarded as declaratory: it does not establish, but merely recognises, the existing inherent jurisdiction of the High Court Whatever about the 26

20. ADMCA 2015 s 106.

21 Mental Health Act 2001 s 3 defines the criteria for ‘mental disorder’, which is not synonymous (at least in this Act) with ‘mental illness’

22 Mental Health Act 2001 s 67

23. ADMCA 2015 s 4(5).

24 HSE v MT [2025] IEHC 440 (31 July 2025) (O’Donnell J) para 335, discussing Kirwan v Connors [2025] IESC 21, Mavior v Zerko Ltd [2013] IESC 15, [2013] 3 IR 268 and G McG v DW (No 2) [2000] 4 IR 1

25 HSE v MT [2025] IEHC 440, para 341

26. The 1937 Constitution provides, at art 34.3.1°: ‘The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal’, such that an ouster of the High Court’s jurisdiction would, in any event, have been problematic: see, for example, the comments of Collins J in Kirwan v Connors [2025] IESC 21, para 37: ‘The inherent jurisdiction of the High Court is, in principle, subject to statutory regulation [referring to the 2015 Act and provisions in respect of the secure care of children]. More difficult issues arise as to whether, in light of the provisions of Article 34 3 1 of the Constitution, such jurisdiction may be entirely abrogated by statute or transferred to another court to the exclusion of the High Court ’ albeit that did not fall to be determined in that case In HSE v MT [2025] IEHC 440, para 351, O’Donnell J acknowledged ‘that there is a considerable question as to whether the Oireachtas [parliament] could ever legislate expressly to abrogate the constitutional jurisdiction of the court in this area ’ , albeit that did not need to be determined in that case either

unsatisfactory nature of the prior jurisprudence in relation to the exercise by the High Court of its inherent jurisdiction in this area (discussion of which is beyond present purposes), its operation is now well established, detailed practice directions have been promulgated, and at least one High Court judge sits each day presiding over an ‘inherent jurisdiction’ list, dealing with the detention of persons with impaired decision-making who do not fulfil the criteria for detention under mental health legislation. 27 28

The inherent jurisdiction is intrinsically practical, and intensely fact and context specific. The jurisdiction is invoked and deployed where (i) real world decisions are necessary to protect a person ' s constitutional rights, usually to life, welfare and/or bodily integrity; (ii) where the person concerned cannot make those decisions in a lawfully competent manner due to an impairment of their capacity in relation to the decision in question; and (iii) where the existing statutory mechanisms do not provide for the interventions to protect the needs of the affected person ’ . 29

It is only engaged where the statutory processes are inadequate In HSE v MT, O’Donnell J was clear:

‘ . . . whether one approaches the issues from the perspective of statutory lacuna or simply the adequacy or amplitude of a statutory provision to vindicate threatened constitutional rights . . . as a matter of respect between the judiciary and the Oireachtas [Parliament], the court ought to endeavour to have regard to legislative schemes and to endeavour to consider whether they can be operated to vindicate the rights in issue before moving to any consideration of the operation of the inherent jurisdiction’ 30

The inherent jurisdiction, in the absence of other legal mechanisms that afford the necessary level of protection, seeks to defend and vindicate the constitutional rights of vulnerable citizens 31

The Constitutional Imperitive

The exercise of such a jurisdiction, unlike, perhaps, in neighbouring jurisdictions, has a constitutional backdrop, where the 1937 Constitution imposes an obligation on the State ‘by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the life and person of every citizen . . . in equal place with the obligation to protect and vindicate the property rights of every citizen’. In addition, insofar as deprivation of liberty is concerned: 32

27. See, DG v Eastern Health Board [1997] 3 IR 511, JO’B v Health Service Executive [2011] 1 IR 794, [2011] IEHC 73, HSE v VE (unreported, High Court, Feeney J, 26/07/2012), HSE v VF [2014] IEHC 628, [2014] 3 IR 305, HSE v KW [2015] IEHC 741 in the context of In re FD (No 2) [2015] IESC 83, [2015] 1R 741 and HSE v AM [2019] IESC 3, [2019] 2 IR 115 See, however, the discussion in HSE v MT [2025] IEHC 440, paras 371-377

28. High Court Practice Direction HC 128.

29 HSE v MT [2025] IEHC 440, para 353

30 HSE v MT [2025] IEHC 440, para 352

31 HSE v MT [2025] IEHC 440, para 354

32. In Re D [1987] IR 449 at 455, by reference to art 40.3.2° of the Constitution.

‘The constitutional guarantee of the right to liberty protects mentally impaired persons to the same extent as everyone else - deprivation of liberty must in all cases be in accordance with law. A benevolent or protective motivation or purpose for whatever measures have been taken cannot be considered to alter the legal fact of detention’.33

Decisional capacity – rather than the cause of any incapacity – is the portal through which the court’s jurisdiction is engaged In HSE v MT, O’Donnell J, having reviewed the limited pre-2015 case-law, noted: 34

‘ . . . what emerges from the case law is that the affected person ' s lack of capacity rather than its cause was the critical issue The cause of the lack of capacity may well inform the question of what treatment or regime of care was required, but this is not necessarily the case. For instance, one could posit a situation in which a person lacks capacity due to a severe cognitive deficit caused by an acquired brain injury, but where the intervention required is a form of essential medical treatment unconnected to the underlying deficits or the injury that caused it. In addition, the question of the statutory mechanisms was less about identifying a lacuna per se but instead focussed on the practical question of whether the statutory schemes in question were effective to protect the constitutional rights of the affected person by providing for the type of care or treatment required to meet the identified needs of the person ’ . 35

Mere incapacity is not a basis for the making of an order under the inherent jurisdiction: ‘[t]he orders sought must be necessary to defend and vindicate the [person’s] constitutional rights’. In the 2015 Act, for its part, there is no diagnostic test in the assessment of lack of capacity

36

Established lack of capacity, however, remains threshold for intervention. The making of any order detaining a person under the High Court’s inherent jurisdiction is an intrusion upon that person ’ s constitutional rights and may only be made for the purposes of vindicating another of that person ’ s rights.

The Proportionality Analysis

In HSE v VF, McDermott J, in making such an order, conducted a detailed proportionality analysis of the interaction between VF’s constitutional rights:

‘The declarations sought involve a serious intrusion on Ms. F’s right to liberty. In order to justify deprivation of her liberty, the [applicant] must demonstrate on the balance of probabilities that this exceptional measure is justified in order to maintain and preserve her health and life . . . The object of the detention is to provide that care and thereby protect her life, and bodily integrity in accordance with the obligation imposed on the State under Article 40 3 2° The court must strike a balance between the applicant’s right to personal liberty and the danger posed by her condition

33 HSE v MT [2025] IEHC 440, para 410

34 [2025] IEHC 440

35. HSE v MT [2025] IEHC 440, para 378.

36 HSE v MT [2025] IEHC 440, para 393, by reference to In re KK (No 3) [2023] IEHC 565

to her right to life and personal safety, and the personal safety of others. The latter would be preserved and vindicated by the restriction of the former. The court considers the deprivation of liberty in those circumstances to be rationally connected to the pressing and substantial need to ensure her life, health and safety. It considers that detention in a secure unit is the least restrictive way of ensuring her wellbeing, care and safety and that the order sought is proportionate to that objective. It is also an order that has due regard to the nature and hierarchy of the rights in issue, and the paramount importance of her right to life.37

In short, a decision to detain a person with impaired capacity under the High Court’s inherent jurisdiction must be the least restrictive, necessary and proportionate response (having regard to the constitutional rights engaged) for ensuring that person ’ s life, health and safety. As Hyland J put it in In re KK (No 3):

‘At its simplest, that requires an identification and analysis of (a) the type of restrictions on the liberty of the person proposed; (b) the constitutional rights negatively impacted by the proposed detention under threat; (c) the constitutional rights sought to be protected by the proposed detention; (d) the carrying out of a balancing exercise to identify what rights ought to prevail and (e) a consideration of the proportionality of the measure proposed.’38

The Fair Procedure Rights

To this end, of course, the person ’ s fair procedure rights must be respected, and safeguarding put in place. Thus:

‘First, there [is] a need for proper evidence of lack of capacity in the form of medical evidence, and preferably from two separate sources one of whom is independent of the party seeking the orders. It can be noted that there may be cases where the urgency of the case means that a second independent medical report cannot be obtained quickly and where any delay will likely result in avoidable harm to the respondent. In those cases, it is always possible for such evidence to be obtained after the initial orders and in time for an initial prompt inter partes hearing It may also be the case that the court appointed guardian ad litem will be satisfied that the medical situation is clear cut and there is no need for a further report. In any event, where an order is obtained urgently on the basis of a single medical report or a number of medical reports from the moving party this will not prevent additional evidence being adduced at a later stage.

Second, . . . it is essential that the person affected by the orders made is facilitated with representation . . . real and appropriate efforts must be made to ensure that the respondent is afforded an opportunity to participate in the process that impacts significantly on their rights

In general terms, there must be representation for the respondent, regular periodic reviews at which there is adequate evidence of the continuing need for and proportionality of the orders that

37 HSE v VF [2014] 3 IR 305 at 326, para 39

38 In re KK (No 3) [2023] IEHC 565, para 30, cited with approval by O’Donnell J in HSE v MT [2025] IEHC 440, para 393

are sought to be continued, there must be evidence of the general welfare and medical circumstances of the respondent and particularly there should be evidence if any powers of restraint were used, and there should be liberty to apply at short notice in the event of any material change in circumstances’.39

Procedurally, and having regard to the person ’ s fair procedure rights, an independent solicitor (who may retain counsel) is generally appointed to the person to be detained in any inherent jurisdiction application. In fact, for practical purposes, this is a universal practice. The role of that solicitor is generally characterised as that of a guardian ad litem. This role and nature of the proceedings have been summarised in the following terms:

40

‘[The] proceedings are civil proceedings in which the applicant seeks orders that engage the constitutional rights of affected persons, and where the applicant must bear the burden of proving that the orders sought are lawful, justified on the evidence and proportionate. Nevertheless, despite being structured as adversarial proceedings, there is an inquisitorial element to the process Even if matters are not raised by the respondent, the court must make sufficient inquiries to ensure that it is fully satisfied as to the appropriateness of the orders sought.

The role of a guardian ad litem in proceedings under the inherent jurisdiction of the court is of critical importance, both in terms of forming a central pillar in the legal protection for affected persons, and in terms of assisting the court by ensuring that relevant matters are brought to the attention of the court. The role of guardian ad litem differs somewhat from that of a legal representative under [the Mental Health Act] 2001 procedures Put briefly, the task of the guardian is twofold: first the guardian must seek to ascertain as best they can the wishes and preferences of the respondent and convey those wishes to the court; and second the guardian must seek to provide an independent view to the court on the application that is under consideration. There is scope for tension between those two tasks.

The court, accordingly, must be assured that the guardian ad litem is able to bring considerable expertise to the discharge of the assigned tasks. Part of the task, where appropriate, is to test not only the evidential basis for the application but also to test the legal basis for the application, and to consider if the proposed intervention is proportionate and just. For instance, even if the invocation of the inherent jurisdiction is entirely warranted, it may be the case that it would be possible and practicable to achieve the desired result of protecting the constitutional rights of the affected person by less restrictive measures than those initially proposed.41

39.HSE v ND [2025] IEHC 86, paras 67, 69-70.

40 ‘ at a minimum, any court hearing an application of this type must be satisfied that a person is represented by a person competent to assist them in responding to the application ’ : In re KK (No 3) [2023] IEHC 565, para 54

41 HSE v ND [2025] IEHC 86 paras 12-15 The High Court was also satisfied (at para 15) that given the relative paucity of authority on the role of the inherent jurisdiction following the commencement of the 2015 Act, it was necessary and appropriate that that application ‘ was subjected to a proper level of scrutiny’ and (at para 69) that the court appointed guardian ad litem was in a position both to bring N D ' s views to the attention of the court and made substantial legal arguments that ensured that the legal basis for the orders sought were subject to proper scrutiny, ‘which was of considerable assistance to the court’

There appears to be no curial disagreement that the voice of the person sought to be detained should be heard in any application. Hyland J seemed to accept that it should be heard ‘loud and clear’, noting that the principles requiring this had been carefully reflected in the 2015 Act Ensuring that the views of the person themselves have been heard is separate to the question of representation

A solicitor, in such applications is not confined to giving voice to the person ’ s ‘will and preferences’; rather, the role extends to putting the applicant for the detention on full proof and challenging that proof, and the legal basis for the application, if necessary. It is far from clear that the second aspect of this role is invariably rigorously complied with, in operation As to the costs that arise, invariably the liability rests with the applicant for detention (for practical purposes always the Health Service Executive (HSE) or a hospital (largely) funded by the HSE).

Whether the appointment of a guardian ad litem is actually necessary, in all such applications, is, at least, questionable That is not to dismiss the fair procedure requirements, or the importance of ensuring that the person ’ s ‘will and preferences’ are fairly put before the court; nor is it to dismiss the importance of a legitimus contradictor in each application, where the person, the subject of the application, is decisionally-impaired.

However, the Circuit Court is conferred with exclusive jurisdiction under the 2015 Act (apart from in relation to a small number of areas expressly reserved to the High Court or where jurisdiction may be exercised concurrently). Accordingly, in general, all matters of personal welfare and in relation to a person ’ s property and affairs must be addressed, under the terms of the 2015 Act Where a decision-making-representative (DMR) is appointed in respect of certain decisions, there is no reason in principle why the authority conferred on a DMR could not extend to defending an application for a person ’ s detention under the inherent jurisdiction of the High Court. In that role, of course, the DMR is charged with ensuring that voice is given to the person ’ s ‘will and preferences’ and that they are given effect to, where possible With authority to defend an inherent jurisdiction application, the role must necessarily extend to ensuring that any application is properly brought; that the evidentiary threshold has been met; that the questions of necessity and proportionality are properly addressed, in respect of the restriction on the right to liberty (and, if it arises, on the right to have one ’ s autonomy respected) in order to vindicate other personal rights, viz. to life, to bodily integrity, to the person, to respect for the dignity of the person, and whatever other rights may be engaged in any particular case. Unlike in the case of a person

42 In re KK (No 3) [2023] IEHC 565, para 46

43 In re KK (No 3) [2023] IEHC 565, para 48, and the guiding principles in s 8 of the Act (and, in particular, s 8(7)) See also Mary Donnelly and Caoimhe Gleeson,‘The Assisted Decision-Making (Capacity) Act 2015 in the Courts: Hearing the Voice of the Relevant Person’ [2024] Irish Judicial Studies Journal 8(2), 47-66 https://ijsj ie/assets/uploads/images/2024%20edition%202/4 %20Donnelly%20and%20Gleeson pdf (accessed 1 December 2025)

44. In re KK (No 3) [2023] IEHC 565, para 54: ‘A person whose capacity is in question is often already disadvantaged in their communication with the world and needs a clear pathway in the context of court proceedings to be heard in relation to their wishes and preferences The ADMCA has provided this pathway by the legislative provisions ’ It should be noted that the 2015 Act is concerned with ‘will and preferences’, not ‘wishes and preferences’ The analysis offered in In re KK (No 3) was approved by O’Donnell J in HSE v ND [2025] IEHC 86.

appointed committee of the person or of the estate of a ward of court, ‘best interests’ have no role.

This seems best to accord with the statutory scheme, when considered as a whole, and the thrust of the authorities The jurisdictional basis for the appointment of another as a guardian ad litem –whatever practice directions may say – has not been clearly identified. The role of a DMR, in inherent jurisdiction applications, has not, to date, been expressly considered in a written judgment.

Be that as it may, the underlying principles in respect of representation, giving voice to a person ’ s ‘will and preferences’ and ensuring that only applications that are properly brought and have a sufficient evidentiary basis are advanced, are unarguably sound.

The Interaction with the 2015 Act

Despite this, determining questions under the inherent jurisdiction of the High Court is not an exercise wholly free of the thrust and intendment of the 2015 Act. Hyland J, in In re KK (No 3), observing that the Constitution is a living document, said that the Act ‘reflects a clear change in the approach of society to the autonomy of persons lacking capacity’. Thus, she stated that ‘[w]hen weighing the detriment to the autonomy of a person lacking capacity that results from a detention order, I think it appropriate for a court to take into account the enhanced legislative weight that has been given to the autonomy of such persons ’ . Leaving to one side, for present purposes that the right engaged is respect for individual autonomy (there being no ‘right’ to autonomy), the principle enunciated is nevertheless clear.

45 46

As to the decision-making process, the 2015 Act informs the approach to be taken In In re KK (No. 3), Hyland J considered:

‘An application to detain under inherent jurisdiction is not an application under the ADMCA and not subject to the regime prescribed by the ADMCA; but nonetheless, the principles that inform the ADMCA may appropriately be taken into account when considering what is required to defend and vindicate a person ’ s constitutional rights, including the procedures to be followed when an application to detain is made’.47

O’Donnell J, in HSE v MT expressly agreed. He seemed prepared, too, to accept that the 2015 Act will inform the question of whether, and how, the inherent jurisdiction should be operated.48

Questions of ‘best interests’ do not arise in determinations under the High Court’s inherent jurisdiction (albeit the language not infrequently slips into discussions in court and determinations). What is required is a careful balancing exercise of express and derived constitutional rights It may

45 In re KK (No 3) [2023] IEHC 565, para 35

46. No such confusion arises in HSE v MT [2025] IEHC 440, para 357.

47 In re KK (No 3) [2023] IEHC 565, para 54

48 HSE v MT [2025] IEHC 440, paras 351-352

be, in fact, that the deployment of a ‘best interests’ test could conflict with the rights-based analysis that the exercise of the court’s inherent jurisdiction necessarily requires.

There may also be a tension between the necessity for an intervention under the inherent jurisdiction to protect a person ’ s constitutional rights in particular circumstances and the mandatory provisions of the 2015 Act that require that any intervention is to give effect, in so far as is practicable, to the past and present will and preferences of the person, insofar as they are reasonably ascertainable. To that extent, the 2015 Act as ‘touchstone’ in inherent jurisdiction applications may be limited, not least in respect of the question of whether, and if so, how the provisions of the 2015 Act can be utilised to make decisions that restrict the rights of affected persons in order to vindicate other rights, and where it is concerned with facilitating and not restricting decision-making 49 50

Exercise of Inherent Jurisdiction not limited to Detention Matters

The scope for the exercise of the High Court’s inherent constitutional power necessarily is limited to those situations which may not have been contemplated by statute but where the constitutional rights of vulnerable persons are at risk of harm. This engages the question of the extent to which the exercise of the inherent jurisdiction intrudes into areas where, put simply, it has no role, and it may not legitimately be deployed.

51

The exercise of the inherent jurisdiction is not limited to detention questions. HSE v MT was a case where one of the rights potentially impacted by the orders sought was the person ’ s entitlement to associate freely with her family and to make decisions around the extent to which she wished to associate with them, indicating the broad scope of orders under the inherent jurisdiction.

It also falls to be deployed in what might be called ‘contingent’ deprivation of liberty, recognising that there are ‘gradations in the types of detention orders that may be sought’. Although the starting point in determining whether a person has been deprived of liberty is the concrete circumstances, and whether the individual has in fact been deprived of liberty, by way of example, where a person is free to come and go from a place of residence, but is liable, pursuant to a court’s order, to be sought by police, arrested without a warrant, detained and returned to the place of residence in the event of a failure to return or absconding, what is involved is an order for detention. Any action by the civil authorities would impinge on liberty significantly and be directed to ensuring that the person remains in the place of residence. Such restraints have been 52 53

49 ADMCA 2015 s 8(7)(b) In HSE v MT [2025] IEHC 440, paras 419-420, O’Donnell J did not consider it necessary to resolve that issue in the particular circumstances of the case before him.

50 HSE v MT [2025] IEHC 440, para 355

51 HSE v MT [2025] IEHC 440, para 370: ‘ having regard to the respect that the branches of Government must show each other, the scope for the exercise of that inherent constitutional power may be reduced where the Oireachtas [Parliament] has by its laws sought to defend and vindicate the rights of particular categories of citizens by putting place statutory scheme or statutory mechanisms to address the vindication of those rights, for instance, through the Mental Health Act 2001, Child Care Act 1991’

52 In re KK (No 3) [2023] IEHC 565, para 36

53 AC v Cork University Hospital [2019] IESC 73, [2020] 2 IR 38, para 325

characterised ‘ as a relatively light form of detention on a spectrum of detention type orders’ but constitute, nevertheless, deprivation of liberty for the purpose of our constitutional order: ‘ . . . even if [such] orders are light touch they amount to detention or at least contingent detention orders’. 54 55

The Limitations

Despite its potentially broad scope and capacity for flexibility, the entire inherent jurisdiction procedural process – whether a person is represented by a guardian ad litem or a DMR – is relatively cumbersome, and, involving a High Court hearing in each case, is expensive. Reviews of detention are required to take place not more than approximately six months apart, to align with the provisions in the Mental Health Act 2001 and to ensure compliance with constitutional norms for the detention and its Convention-compliance.

The number of such cases are, whether consequently or otherwise, relatively small. It also merits noting that the process is not self-activating or automatically activated In each case, an application has to be made. Unlike in wardship previously, there is no mechanism for the court’s acting on its own motion if it becomes aware of particular case of concern. Thus, if a State agency such as the Health Service Executive, or a hospital, or residential institution, does not make the application (irrespective of whether the evidence objectively and obviously suggests that the person is detained), put simply, no steps will be taken to authorise a person ’ s detention There is no express obligation to initiate an application. The cost implications for a family member’s doing so are potentially prohibitive (unless they are well resourced) and realistically this must be considered to exercise a ‘chilling effect’ more generally: securing expert evidence as to lack of capacity and the necessity for detention (or other restrictions on liberty) and funding the cost of an independent solicitor, if one is appointed, are expensive exercises, and civil legal aid is subject to means testing. Persuading an institution to initiate proceedings under the inherent jurisdiction (unless it also serves some objective that the institution wishes to achieve too, such as moving the person on from an acute setting to a residential setting, or from one residential setting to another) can be difficult, as a matter of practical reality.

56

Thus, the sole deprivation of liberty mechanism that remains (outside of mental health legislation, which is self-contained) involves a High Court application (with its burdensome rules of procedure and practice directions) and is, not least on that account, expensive. It is limited in its practical reach, and wholly dependant on the voluntary action of others to activate. Where no application is made, no protections are afforded, irrespective of the evidence of lack of capacity and de facto detention. Deprivation of liberty safeguarding, accordingly, is largely dependent on happenstance, hardly a good model for the vindication of important rights

54. In re KK (No 3) [2023] IEHC 565, para 36.

55 HSE v MT [2025] IEHC 440, para 402

56 See, for example, In re Godfrey (1892) 29 LR Ir 278

Deprivation of Liberty Safeguards: the Proposed Response(s)

While logistically, and for reasons discussed shortly, this approach is untenable, given the potential numbers of individuals who require to be safeguarded, statutory deprivation of liberty safeguards otherwise do not seem imminent. At the level of principle, this is indefensible. On 5 December 2017, the Irish Government approved publication of preliminary draft Heads of Bill to be inserted as a Part 13 in the 2015 Act. This was for public consultation purposes. Days later, the Department of Health launched a public consultation on the draft legislation, which was published with a consultation paper. The views of the public were sought on all aspects of the draft Heads of Bill, as well as on specific questions detailed in the consultation paper. This was to inform further development of the legislative proposals.

A report on the public consultation was published by the Department of Health in July 2019, noting, inter alia, that respondents to the consultation expressed concern that the existing resources of the Courts Service and of the Decision Support Service (the regulator established by the 2015 Act to oversee its operation and regulation) would be insufficient to support the implementation of the proposed legislation. It was variously suggested that the provision of advocacy supports or the introduction of a tribunal system would be more practicable This was in advance of the commencement of the 2015 Act, and its amendment expressly referring to the inherent jurisdiction of the High Court

57

More recently, in April 2025, the Department of Health published a discussion paper on the development of protection of liberty safeguards legislation. It noted that work following the previous consultation process was paused in 2020 because of the resource demands presented by the Covid 19 pandemic. Having resumed in 2023, it noted an expert advisory group comprising legal, clinical and advocacy experts was established ‘to support the development of policy positions, in conjunction with stakeholder engagement’. The discussion paper presented draft proposals, and it was intimated that it would be accompanied by a survey with specific questions for observation and comment Once responses are received and considered, the plan is said to be for final proposals to be submitted to the government for approval and the drafting of a general scheme of a bill commenced The draft proposals in the discussion paper, ‘presented at a high-level to shape primary legislation’ also noted that primary legislation will be accompanied by detailed codes of practice ‘where further details will be worked out’ . 58

The government’s legislative programme for Spring 2025 placed a proposed Protection of Liberty Safeguards Bill in a ‘work is ongoing category’, below the list of legislation for priority publication in the Spring 2025 session and legislation for priority drafting in that session It remained in that category in the Summer 2025 legislative programme and the Autumn 2025 programme. All of

59 60 61

57 Department of Health, The Deprivation of Liberty Safeguard Proposals: Report on the Public Consultation (July 2019) p 204 https://www gov ie/en/department-of-health/publications/the-deprivation-of-liberty-safeguard-proposals-report-on-the-publicconsultation/ (accessed 28 November 2025)

58. Department of Health, Development of Protection of Liberty Safeguards Legislation Discussion Paper (April 2025) p. 3.

59 https://assets gov ie/static/documents/government-legislation-programme-spring-2025 pdf, p 19 (accessed 28 November 2025)

60 https://assets gov ie/static/documents/Government Legislation Programme Summer 2025 pdf p 19 (accessed 28 November 2025)

61.https://assets.gov.ie/static/documents/b6d09237/Government Legislation Programme Autumn 2025.pdf p. 20 (accessed 28 November 2025)

the hallmarks of the 20-year lead-in to the commencement of the 2015 Act are present

The Numerical Challenge: Protection of the Vulnerable

The limitations of the present system for the protection of the vulnerable are thrown into stark relief by even a brief review of demographic trends and condition prevalences and all of which must have been known to those charged with the design of the system in the first instance

The over-65 population

Ireland and Northern Ireland – A Joint Census Publication 2021-2022 put the population on the island at 7,059,682 in total, with 1,910,543 in Northern Ireland. The percentages of the population over age 65 were 15 1% in Ireland and 18% in Northern Ireland In April 2025, population and migration estimates put the population of Ireland at 5,458,600 with 861,100 aged 65 and over (15 8%) Northern Ireland’s population, as of 30 June 2024, was 1,927,900, with 349,200 aged 65 or over (18.1%) according to the 2024 mid-year population estimates. Whatever about the differences in the various figures, two matters are clear: (a) the population of both Ireland and Northern Ireland is increasing and (b) the percentage of those over 65 is also increasing. Accepting that the raw data cannot, of course, be directly translated into actual need for decision-supports, they do, however, indicate the potential scale of that need If, say, just 10% of those over age 65 were to require some level of decision-supports and protection, that readily suggests, in Ireland, that over 85,000 people potentially fall into this category.

Dementia Prevalence

The Health Service Executive has estimated that, as of 2020, the dementia prevalence in Ireland was 64,141; of these, 4,435 were under age 65 (no figures were identified for under age 30). It has been estimated, based on census data (albeit from 2016) that these figures will increase to 150,133 and 5,023, respectively, by 2045. By way of comparison, Raw Disease Prevalence in Northern Ireland 2024/25 (based on administrative data recorded on general practice disease registers at 31 March 2025) recorded 14,608 general practice patients on the dementia register, with a raw prevalence rate of 7.1 per 1,000 general practice patients. 65 66

Not all such people will, of course, have impaired decision-making or require deprivation of liberty safeguards, although it is difficult to gainsay that many will, nevertheless, be vulnerable and may require some level of assistance.

Intellectual Disability

Any assessment of the logistical challenge must also take into account any issues arising from decisional impairment as a result of intellectual disability. Thus, in relation to people with an

62.https://www.cso.ie/en/statistics/population/censusofpopulation2022/irelandandnorthernireland-ajointcensuspublication2021-2022/ (accessed 28 November 2025)

63 https://www cso ie/en/releasesandpublications/ep/p-pme/populationandmigrationestimatesapril2025/ (accessed 28 November 2025).

64.https://datavis.nisra.gov.uk/population/2024-mid-year-estimates-for-northern-ireland.html (accessed 28 November 2025)

65 https://www hse ie/eng/dementia-pathways/about/ (accessed 28 November 2025)

66 https://www health-ni gov uk/sites/default/files/2025-05/rdp-ni-2025 pdf (accessed 28 November 2025)

intellectual disability (ID) as a primary disability, 19,261 adults were confirmed to be on the National Ability Supports System (NASS) at the end of 2024 Of these, almost two-thirds (64%) had a moderate, severe, or profound ID Nearly one in five (17%) were aged 60 years and over. Where ID was a primary disability, two thirds had an additional disability or disabilities 67

The Decision Support Mechanisms in Operation to Date

Against this demographic background – and the figures cannot be considered to have been unknown for a considerable period before the commencement of the 2015 Act – the number of decision-support arrangements, to which effect has actually been given by the 2015 Act – seems miniscule The following table, compiled from the DSS published figures, summarises the position from the commencement of the Act up to the end of 2025. 68

TABLE 1. Position from the commencement of the Act up to the end of 2025 68

Thus, a total of 2,270 decision-supports were registered with or notified to the DSS in just over two years and 8 months of operation. Of these, only 365 (or 16% of the total) were at the lower levels, demonstrating a focus of activity in the courts. Some caution must be exercised in reviewing these figures: the total number of decision-making representation orders includes orders what were varied by the court, giving rise to a further registration(s) in the same case. In contrast, the number of enduring powers of attorney registered with the DSS, over the same period was 5,075; however, the number of notified enduring powers of attorney (i.e. notification that the donor has lost capacity), over the same period, was 196.

67. HRB Bulletin National Ability Supports System (NASS) Overview of people engaging with disability services, 2024 https://www hrb ie/wp-content/uploads/2025/06/Overview engaging disability services bulletin 2024 pdf (accessed 28 November 2025)

68. https://decisionsupportservice.ie/decision-support-arrangement-statistics (accessed 28 January 2026)

69 70

While fewer than 600 capacity applications were made to the Circuit Court to the end of 2024, as the table indicates, 1,113 decision-making representation orders (subject to the foregoing caveat) were made in the 12 months to 31 December 2025, suggesting a sharp uptick in court applications in 2025.

Acknowledging that the process may still be ‘bedding in’, it appears, nevertheless, that the scale of the challenge in addressing decisional impairment, and the protection, more generally of the vulnerable, has barely been dented.

The Numerical Challenge: Deprivation of Liberty Safeguards

The figures and population estimates set out above provide a clear background against which the truly limited extent of the scope and range of deprivation of liberty safeguarding in persons with lack of decision-making capacity might be assessed. Little comfort can realistically be found in the statements of intent in respect of statutory deprivation of liberty safeguards, given the shuddering stop-start process that has characterised their development, when considered in the context of the legislative development of the 2015 Act and the tardiness in its commencement. Simple demographics and consideration of the numbers of people who fall into what might reasonably be characterised as vulnerable groups and whose rights – largely because of impaired capacity –are at risk of infringement and who, because of impaired capacity, are likely least able to assert those rights – suggest, again, that the surface of what is necessary has barely been scraped.

Inherent Jurisdiction Applications: the numbers

Thus, in 2024 (the last full year for which figures are available, albeit this process only really commenced that year), 225 new inherent jurisdiction cases were commenced; 1,088 orders were made under this heading by year ’ s end The discrepancy in the figures between cases commenced and orders made arises because, during the initiating application, preliminary orders, including the appointment of a guardian ad litem are made and orders are reviewed, as noted, at regular intervals. Some detentions, in addition, are relatively short-lived, and liberty to apply is invariably part of any detention order made. Often, there is no legislative gap sufficient to require the exercise of the court’s inherent jurisdiction in areas other than detention and deprivation of liberty safeguarding. Nevertheless, it appears that inherent jurisdiction applications (and orders) not infrequently trespass into decision-making in areas properly and exclusively within the scope of the 2015 Act in the Circuit Court, e.g. in relation to personal welfare. 71

Again, these figures are miniscule, when set against the backdrop of the numbers in placements where a real concern about deprivation of liberty may arise.

69 Courts Service, Annual Report 2024, p 19: https://www courts ie/acc/alfresco/5a87d7d6-b27d-407f-bf9dfb3b8e47627e/Courts%20Service%20Annual%20Report%202024 pdf/pdf/1 (accessed 28 November 2025)

70 https://decisionsupportservice ie/decision-support-arrangement-statistics (accessed 28 January 2026)

71. Courts Service, Annual Report 2024 (published 7 July 2025) p. 21 https://www.courts.ie/annual-report (accessed 29 November 2025)

Residential Care for Older Persons

To add further context, there are over 32,000 residential long-term care beds for the care of the elderly in Ireland. These are operated in approximately 550 separate institutions. All are subject to the same statutory regulatory regime, and to registration and inspection by the Chief Inspector of Social Services. Of these, 3% are operated by the voluntary sector, 16% by the Health Service Executive (i.e. the state sector) and 81% by private sector companies, with occupancy rates in excess of 92% The care of significant numbers of elderly persons has been outsourced to the private sector – albeit subject to external regulation.

Care of Persons with Intellectual Disability (‘ID’)

In 2023, where information was known to NASS about adults with ID over half were living with family members, more than a third were living in a residential setting (5%) were living alone, and (2%) lived with non-relatives. Among adults with an ID who did not live in a residential setting 81% reported having a primary carer, nearly all of whom lived with their primary carer The number living in a residential setting is very significant; so, too, is the number living with family members where restrictions on liberty may also apply.

Deprivation of Liberty in the Population

In standard deprivation of liberty settings, viz prisons and involuntary detention under mental health legislation, rigorous deprivation of liberty protections apply. At the end of December 2025,

72.The published figures, the latest of which are from 2023/4, vary slightly depending on the source and year. The Department of Health National Healthcare Statistics 2024 put the figure for long-term care nursing beds in residential facilities at 32,169 (https://www gov ie/en/department-of-health/collections/national-healthcare-statistics-2025/#hospitals-and-hospital-beds accessed 28 November 2025); an industry review (BDO/Nursing Homes Ireland Private and Voluntary Nursing Home Survey 2023–24) put it at 32,239 in 2023 (https://www.bdo.ie/getattachment/e9558ef4-fdf8-47c2-8383-bf9408ab9ef6/Final-Draft-BDONursing-Homes-Ireland-Private-Voluntary-Survey-Report-2023-24 pdf?lang=en-GB accessed 28 November 2025) and the Health Information and Quality Authority (HIQA) – the national regulator – (Health Information and Quality Authority 15 Years of Regulating Nursing Homes 2009-2024) at 32,214, at the end of 2023 (https://www.hiqa.ie/sites/default/files/2024-10/15-Years-ofRegulating-Nursing-Homes-2009-2024.pdf accessed 28 November 2025). These last two sources put the number of institutions at 547 and 553, respectively The reasons for the differences may be attributable to different times for whatever cross-sectional assessments were carried out

73. Health Act 2007 s 40(1).

74. https://www.hiqa.ie/sites/default/files/2024-10/15-Years-of-Regulating-Nursing-Homes-2009-2024.pdf (accessed 28 November 2025)

75 The funding scheme is provided for by the Nursing Homes Support Scheme Act 2009; https://www.bdo.ie/getattachment/e9558ef4-fdf8-47c2-8383-bf9408ab9ef6/Final-Draft-BDO-Nursing-Homes-Ireland-PrivateVoluntary-Survey-Report-2023-24 pdf?lang=en-GB (accessed 28 November 2025)

76 HRB Supplementary Bulletin National Ability Supports System (NASS) Overview of people with an intellectual disability engaging with disability services, 2023 https://www hrb ie/wp-content/uploads/2024/07/NASS 2023 ID supplementary bulletin pdf (accessed 28 November 2025). Recent data for Northern Ireland are not readily accessible. However, see: Fiona Mulvany, Steve Barron and Roy McConkey, ‘Residential Provision for Adult Persons with Intellectual Disabilities in Ireland’ [2006] Journal of Applied Research in Intellectual Disabilities 20(2):70 – 76 DOI:10 1111/j 1468-3148 2006 00306 x, which suggested that around 10,000 people live in some form of residential provision: 56% in special settings, 35% in ordinary housing and 9% in hospitals Most residents were classed as having ‘ severe ’ disabilities and were aged over 35 https://www researchgate net/publication/229871456 Residential Provision for Adult Persons with Intellectual Disabilities in Ir eland (accessed 28 July 2025)

5,753 people were in prison custody in Ireland. In Northern Ireland, the average daily prison population for 2024/5 (for all types of custody) was 1,911. In 2025, the number of people admitted involuntarily to psychiatric units in Ireland was just over 2,500, not counting those (1,053) whose period of detention, once involuntarily admitted, was extended. In Northern Ireland, for the year 2023/2024, the figure was 998. 77 78 79 80

The cumulative figures for those detained in prisons or mental health facilities represent only a small fraction of those living in nursing homes, in residential care settings (for persons with ID) and in other non-residential settings with carers (largely family members), which may also be potentially restrictive The numbers in the latter categories together are about one order of magnitude greater than those in prisons.

In the case of detention in prison or on the grounds that a person has a mental disorder, within the meaning of the Mental Health Act 2001, the fact and circumstances of detention are invariably clear: the person is not permitted to leave and will be prevented if (s)he attempts to do so If a person is kept in a place for an indefinite period under the control and supervision of those caring for them (whether in a nursing home, a residential care facility or at home), and is not free to leave, they are deprived of their liberty. As already noted, the question of the person ’ s capacity is irrelevant; so too, is the motivation of the detainer. Any brief review of the care of the elderly or of persons with ID, not merely confined to residential care settings, should readily reveal de facto detention in many cases. Whereas it has been suggested that ‘necessity’ may justify detention for a short period, in the discharge of a duty of care to vulnerable person who may wish to leave an institution in the context of impaired decision-making, pending the invoking of an appropriate formal mechanism, this appears conceptually confused. These principles, articulated in the context of a person detained in a hospital setting, were observed to be, perhaps, not of universal application. Thus, the Irish Supreme Court, accepting that the starting point for considering whether a person has been deprived of his or her liberty, ‘must start with the express constitutional provision in article 40.1 [of the Constitution] that no citizen may be deprived of his or her personal liberty save in accordance with law,’ stated: 81 82 83 ‘The legal principles discussed [in AC v Cork University Hospital & ors], and the conclusions reached, are intended to be applicable to that situation [in a hospital] and are not to be seen as necessarily applying in full to private or family care arrangements It may be that wholly different considerations would arise in respect of such arrangements.’84

77.On 31 December 2025, there were 6,478 prisoners in the prison system, with a bed capacity of 4,718, and 5,753 actually in custody https://www irishprisons ie/wp-content/uploads/documents pdf/31-December-2025 pdf (accessed 28 January 2026)

78 The Northern Ireland Prison Population 2024/25 October 2025 https://www justice-ni gov uk/sites/default/files/202510/Northern-Ireland-Prison-Population-2024-25 pdf (accessed 28 November 2025)

79. https://www.mhcirl.ie/what-we-do/mental-health-tribunals/mental-health-tribunal-statistics (accessed 28 January 2026).

80 https://www health-ni gov uk/sites/default/files/publications/health/mhld-stats-23-24 pdf (accessed 28 November 2025)

81 As to which, see, Guzzardi v Italy (1980) 3 EHRR 333, Stanev v Bulgaria [2012] 55 EHRR 22, P v Cheshire West and Chester Council [2014] UKSC 19, [2014] AC 896

82. See, AC v Cork University Hospital & ors [2019] IESC 73, [2020] 2 IR 38, paras 353-4.

83 AC v Cork University Hospital & ors [2019] IESC 73, [2020] 2 IR 38, para 333

84 AC v Cork University Hospital & ors [2019] IESC 73, [2020] 2 IR 38, para 393

85

If so, it is not clear why or how, although the sheer scale of the challenge of regularising the care arrangements of many thousands of vulnerable people, and the likely associated cost, might well prompt attempts to nuance and finesse the jurisprudence as it applies to less formal arrangements. Whether that is ultimately justifiable, remains to be seen. In this context, it might be noted that judgment is pending in a reference by the Attorney General of Northern Ireland of a devolution issue under paragraph 1(b) of Schedule 10 to the Northern Ireland Act 1998. The issue is:

‘Whether the Minister of Health has power to revise the Deprivation of Liberty Safeguards Code of Practice issued under s.288 of the Mental Capacity Act (Northern Ireland) 2016 (‘the 2016 Act’) so as to provide that, in the context of the delivery of care and treatment, individuals aged 16 and over with impaired decision-making may be understood to be consenting to confinement through the expression of wishes and feelings, so that their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights ’

The facts of the reference are in the following terms:

‘Under the Northern Ireland Act 1998, a “devolution issue” (including whether an act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination. The Attorney-General for Northern Ireland has referred the above question to the Supreme Court. The question arises in the context of the provision of care and treatment for persons with cognitive impairments, and how their rights to liberty and security – under Article 5 of the ECHR – are safeguarded. The AttorneyGeneral considers that the proposed revisions to the Deprivation of Liberty Safeguards Code of Practice (the “Code”) would adopt an approach to the scope of Article 5 which would differ from that outlined by the Supreme Court in the case of P v Cheshire West and Chester Council & Anor [2014] UKSC 191; [2014] AC 896, but which would nonetheless satisfy the requirements of Article 5. Accordingly, the Attorney-General seeks confirmation that the Minister of Health would have the power to issue the revised Code ’86

The outcome of this reference will necessarily require consideration in the context of any deprivation of liberty safeguards in Ireland, too, albeit it remains to be seen how that will accommodate the powerful constitutional protection of the liberty of the citizen, and, in particular, in light of the clear jurisprudence to date

87

CONCLUSION

Despite the long lead-in time to the commencement of the 2015 Act, and prolonged discussion about deprivation of liberty safeguards – which have yet to bear legislative fruit – the protection of those who are among the most vulnerable because of impaired decisional capacity might best be described as ad hoc. There are no clear data on the numbers who may be affected, although

85 UKSC/2025/0042

86 https://www supremecourt uk/cases/uksc-2025-0042 (accessed 2 December 2025)

87 Article 40 4 1°

reasonable (albeit gross and imprecise) inferences can be drawn from population demographics and estimates, and the available figures for the prevalence of dementia and intellectual disability, and where people within various age and other disease/condition groups live and are cared for There are clear data, however, on how the 2015 Act has been deployed in response, and on the numbers of individuals whose deprivation of liberty has actually been sanctioned and is being overseen by the courts. The gap between the (albeit) imprecise dataset and the validated one, by any estimate, is large: yawning hardly seems an appropriate description. Chasm would be more appropriate

Where proper deprivation of liberty safeguards are not in place, and the High Court’s inherent jurisdiction represents the only mechanism for safeguarding vulnerable persons with impaired decisional capacity who require to be, or are actually, detained, and that jurisdiction has only been invoked in a relatively small number of cases, meanwhile, a large number of citizens has been left exposed to significant rights violations, without any safeguarding or appropriate oversight.

Quite apart from legislative tardiness, the absence of any self-activating processes to regularise suspected deprivation of liberty (and other restrictions on the exercise of choice, e g in respect of contact with others) seems fatal to progress. While many criticisms have been made of the Lunacy Regulation (Ireland) Act 1871, in the context of the regulation of the pre-2015 Act wardship jurisdiction, in this latter regard its original drafting was considerably more enlightened and progressive than anything available currently.88

The 2015 Act, operationally, does not yet seem to be reaching those whose rights it was ostensibly designed to support and protect. Unless and until some person with capacity, knowledge of the law and sufficient concern actually seeks to invoke the Act’s protections on behalf of another, the status quo ante for large numbers of vulnerable people will remain unchanged The inherent jurisdiction of the High Court reaches only a tiny fraction of potentially a large swathe of the population, whose liberty and freedom of movement and association may well be infringed and restricted, with neither lawful authority nor oversight. Again, unless and until some person actually seeks to invoke the court’s protection, their situation will not change either. The vindication of rights – and particularly in such an important area as decisional capacity and liberty – ought not depend on chance, or the goodwill of others It appears, disappointingly, it still does, and will, for some time.

It is difficult to ignore the likely costs implications of a properly functioning system to protect those whose capacity is impaired and those who are deprived of their liberty However, lack of resources and cost are a poor excuse for failing to vindicate properly the rights of the vulnerable.

89

88. See, in particular, ss. 4-8.

89 See, for example, Ajit Shah et al ‘Deprivation of Liberty Safeguards in England: implementation costs’ [2011] British Journal of Psychiatry 2011, 199:232-238 doi: 10 1192/bjp bp 110 089474

https://www researchgate net/publication/51253375 Deprivation of Liberty Safeguards in England implementation costs (accessed 2 December 2025); Northern Ireland Assembly Research and Information Service Briefing Paper (Paper 93/15) Public Finance Scrutiny Unit: Mental Capacity Bill: Deprivation of Liberty Assessment Costs (16 December 2015)

https://www niassembly gov uk/globalassets/documents/raise/publications/2015/hssps/9315 pdf (accessed 2 December 2025)

Registered Intermediaries as ‘Facilitators of Communication’ in the Justice System1

Dr

John Taggart, Lecturer, School of Law,

QUB

Emma McIlveen, BL, Bar of Northern Ireland

INTRODUCTION

The Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’) represented a shift in approach towards vulnerability in the criminal justice system, with the introduction of ‘special measures ’ aimed at improving the experience of vulnerable witnesses when giving evidence. These measures include screening the witness from the accused, giving of evidence via live-link, removal of wigs and gowns and video-recording of both evidence and chief and cross-examination. As well as protecting vulnerable and intimated witnesses, the special measures regime aimed to maximise the evidence available to the court and to improve the quality of the evidence. Together, these objectives are geared towards enabling the witness to give their ‘best evidence’. 2

While many of the measures introduced by the YJCEA merely codified long-standing practice in the courts, the introduction of the ‘Registered Intermediary’ (‘RI’) via s29 was recognised as ‘unprecedented’ and represented a ‘radical shift in courtroom practice’ . The role has been credited with effecting a ‘culture change’ in cross-examination and has been described as ‘the single biggest improvement in the criminal justice system over the last thirty years ’ . The Intermediary special measure is distinct from the other special measures because it is a ‘role’, carried out by a person. Intermediaries ‘facilitate communication’ between vulnerable witnesses and criminal justice professionals, such as barristers and judges. They conduct a communication assessment of the vulnerable individual and then prepare a ‘report’ for the court with practical guidance about how to communicate with the individual. For example, recommendations may include avoiding ‘tag questions’ (e g ‘You went there, didn’t you?’, ‘He didn’t see the car, did he’?), the proposed use of timelines when asking questions relating to time, and regular breaks to assist concentration/reduce fatigue. At court, the Intermediary will normally sit beside the witness, ensuring that questions put to them are understandable, and may intervene to flag a breakdown in communication. Crucially, the Intermediary has a duty to execute this role without altering the substance of the evidence 3 4 5 6

1 This is Part 2 to an earlier article published in this journal, titled: ‘‘A Change in ‘Culture’: Hearing Adjustments for Vulnerable Witnesses and Litigants’ [2025] 1 Journal of Elder Law and Capacity.

2 Youth Justice and Criminal Evidence Act 1999, ss23-30

3 Youth Justice and Criminal Evidence Bill [Lords] Clause 28 (22June 1999)

4 P Cooper and D Wurtzel, ‘Intermediaries’ in Penny Cooper and Heather Norton (eds), Vulnerable People and the Criminal Justice System: A Guide to Law and Practice (Oxford University Press 2017), 364.

5 Victims’ Commissioner, ‘Next steps for special measures: a review of the provision of special measures to vulnerable and intimidated witnesses’ (May 2021) 27

6 K Smith and S Tilney, Vulnerable Adult and Child Witnesses (Oxford University Press 2007)

Although the majority of the discussion around the intermediary role has related to criminal and family cases, the participation of vulnerable individuals is a concern across the justice system. As a communication facilitator, the Intermediary role can promote participation in a range of justice fora. For example, McKeever et al’s work examining the participation of litigants in person covered a range of proceedings including ancillary relief, family homes and domestic violence, family proceedings, bankruptcy, and civil bills. The ‘barriers’ to participation identified in the research range from ‘intellectual’ challenges (not being able to understand the language or legal issues), practical (not being able to access support to help to understand and manage the process), emotional (feeling overwhelmed by the process and balancing the emotional impact with the legal arguments of the case), or attitudinal (being stereotyped as problematic by court actors and having little or no trust in the process). The demands placed on vulnerable individuals will of course vary, but it is clear that the justice system poses significant challenges for those with communication difficulties 7

This article proceeds in two parts Part A outlines the background to the Intermediary role in Northern Ireland and England and Wales, examining the scope and function of the role and focuses on the importance of the ‘Ground Rules Hearing’. It goes on to consider how Intermediaries can operate ‘beyond the courtroom’ and then positions the role in the broader context of ‘ access to justice’ and reasonable adjustments.

Part B builds on these themes by examining the current ‘practice on the ground’. As intermediary practice continues to develop, it is imperative to consider how the laws and policies on the books translate practically to the realities of the justice system.

Part A: The Role of the Intermediary

Background to the Intermediary role

In Northern Ireland, the Criminal Evidence (NI) Order 1999 (‘CE(NI)O’ or ‘the 1999 Order’) replicates the Intermediary provision contained within the YCJEA 1999. However, the organisation and provision of Intermediaries differs from England and Wales in several ways. In England, the role was first piloted in 2004 in six police force areas. The Home Office recruited a cadre of intermediaries, mostly trained as speech and language therapists, deemed to possess the ‘relevant professional skills’ These first intermediaries were trained on criminal procedure and writing court reports based on their assessment of a vulnerable individual’s communication needs. The Witness Intermediary Scheme (‘WIS’) was fully implemented nationally in 2008. The key operational element of the scheme 8

10

7 Grainne McKeever at al, ‘The Snakes and Ladders of Legal Participation: Litigants in Person and the Right to a Fair Trial under Article 6 of the European Convention on Human Rights’ [2022] 49(1) Journal of Law and Society 71.

8 Article 17

9 J Plotnikoff and R Woolfson, ‘The Go-Between: Evaluation of Intermediary Pathfinder Projects’ (Lexicon 2007)

10 J Plotnikoff and R Woolfson, Intermediaries in the Criminal Justice System (Policy Press 2015) 11

became known as the ‘Matching Service’, which is the mechanism by which Registered Intermediaries are matched to the requirements of witnesses at the request of the end-user. While the vast majority of Intermediaries initially recruited to the register were speech and language therapists, in recent years there has been an increase in individuals from other backgrounds, such as teaching, nursing and social work.

England and Wales operates what has become known as a ‘two-tier’ Intermediary model. ‘Registered Intermediaries’ who assist witnesses as part of the WIS are recruited, trained and regulated by the Ministry of Justice (‘MoJ’) while defendants fall outside this scheme and have no statutory entitlement to Intermediary assistance Since 2022, any Intermediary appointments for eligible defendants are made under the HMCTS Approved Intermediary Scheme. These Intermediaries are provided by independent providers, such as ‘Communicourt’ and ‘Triangle’, who recruit, train and oversee their own Intermediary practitioners. Applications for Intermediary assistance for a defendant must be granted by the court using its inherent jurisdiction. There is no formal provision for Intermediary assistance for vulnerable suspects at the investigative stage

Northern Ireland introduced its own Intermediary scheme, the Registered Intermediary Scheme (‘RIS’), in 2013. Since the inception of the RIS, it has covered both vulnerable witnesses and defendants – a significant divergence from the WIS in England and Wales. The Department of Justice concluded, after discussions with the Office of the Lord Chief Justice, that respect for the principle of equality of arms demanded such broad eligibility. As such, Northern Ireland operates a ‘unitary model’ of Intermediary provision The first phase of the RIS pilot was launched in May 2012 in the Crown Court sitting in Belfast for offences that were triable only on indictment. It was subsequently extended to all Crown Courts in Northern Ireland from November 2013. The second phase of the Pilot, covering all Crown Court cases, commenced on 1 April 2015 The RIS now covers all levels of court, with the vast majority of appointments made to criminal and family courts Like England and Wales, most of those on the RIS register are speech and language therapists with several social workers also performing the role. 14

15

Eligibility for RI assistance in Northern Ireland broadly mirrors the position in England and Wales. A witness is eligible for intermediary assistance if they meet the test outlined in Article 4 of the 1999 Order Children (i e individuals under the age of 18) are eligible due to their age An Intermediary may otherwise be appointed to a witness if the court considers that the ‘quality of evidence’ given by the witness is ‘likely to be diminished’ by any of the reasons under Article 4(2):

11 MoJ, ‘The Witness Intermediary Scheme: Annual Report 2018/2019 (September 2019) available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/835941/witness-interscheme-annual-report pdf> 10 accessed 7 January 2020

12 Emily Henderson, ‘A Very Valuable Tool’: Judges, Advocates and Intermediaries discuss the Intermediary System in England and Wales’ [2015] 19(3) International Journal of Evidence and Proof 154

13. ibid.

14 ibid

15 Department of Justice, ‘Northern Ireland Registered Intermediaries Schemes Pilot Project: Post-Project Review’ (January 2015) 6

(2) The circumstances falling within this subsection are -

(a) that the witness -

(i) suffers from mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986; or

(ii) otherwise has a significant impairment of intelligence andsocial functioning; (b)that the witnesshas a physical disability or is suffering from a physical disorder.

Ultimately, the assessment of when evidence is likely to be diminished is a matter for the judge. Anecdotal evidence suggests that in some cases, judges have required a separate medical report, such as a psychological report, to support the application for an RI There is, however, no requirement for such an ancillary report and there is of course the issue of funding and whether legal aid would cover the preparation of such a report.

Eligibility for Intermediary assistance for vulnerable accused persons is contained within Article 21BA of the 1999 Order The eligibility criteria are as follows:

where the accused person is under 18, the condition is that the accused's ability to ‘participate effectively in the proceedings’ as a witness giving oral evidence in court is compromised by their level of intellectual ability or social functioning. (Article 21BA(5) where the accused person is 18 or older, the conditions are:

i) the accused suffers from a mental disorder (within the meaning of the Mental Health (Northern Ireland) Order 1986 or otherwise has a significant impairment of intelligence and social functioning; and

ii) the accused is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court

Demand for RI assistance in Northern Ireland has steadily grown since the RIS was launched. For example, between May 2013 and March 2015, there were 383 requests for RI assistance in total. In 2022/2023, there were 1249 requests and in the year 2023/2024 this increased to a total of 1264 requests The majority of these requests were made for children (355) Other vulnerabilities which formed the basis of requests included: Mild/moderate learning disabilities (280), Autism Spectrum Disorder (175) and mental health (145) 16

Requesting an RI assessment – The practicalities

One feature of RI provision in Northern Ireland is that all requests are made through the Intermediary Scheme Secretariat (ISS) which sits within the Department of Justice. The ‘end user ’ of the RIS who requests an RI assessment will either be a police officer, a solicitor or the Public Prosecution Service (PPS). As will be discussed further below in

16 Statistics provided by the Department of Justice (Northern Ireland)

Part B, the earlier a potential vulnerability is identified and an RI assessment requested, the better. Nonetheless, an RI assessment can requested at any stage and an assessment will then be carried out Around 80% of all RI requests are made by the PSNI with 10% from the PPS and 10% from defence solicitors. Of all the requests made at the court stage i.e. a potential vulnerability has not been detected prior, approximately 48% of these are made by the PPS for complainants/prosecution witnesses and 52% are by defence solicitors for the defendant/defence witnesses. The ISS ‘matches’ each request based on the profile of the vulnerable individual and the expertise/specialism of the available RIs 17

Function and scope of the intermediary role

‘The use of intermediaries has introduced fresh insights into the criminal justice process…a number of those who are among the most vulnerable in the community may now be heard when before they would have been forced to remain silent.’18

The above quote from Lord Judge, former Lord Chief Justice of England and Wales, acknowledges that the Intermediary role represents a significant change to the justice system. Intermediaries may bring ‘fresh insights’ to a traditionally conservative process, but what does this mean and what does the role actually involve? As a creature of statute, the Intermediary role’s function is set out in s29 YJCEA 1999/Art 17 CE(NI)O 1999 This outlines that:

(1) A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this Article ( “ an intermediary”)

(2) The function of an intermediary is to communicate (a)to the witness, questions put to the witness, and (b)to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.

The expectation at the time of the legislation’s introduction was that the Intermediary would be a court-based role. A special measures ‘direction’ is made by the court and it is the judge who determines whether the necessary conditions have been met Indeed, the other special measures, such as the use of screens and removal of wigs and gowns, clearly relate to the court. It should also be remembered that the special measures regime was introduced as an attempt to tackle the limitations of the traditional adversarial trial model.19

17. Statistics provided by the Department of Justice (Northern Ireland).

18. The Rt Hon Lord Judge, ‘Vulnerable Witnesses in the Administration of Criminal Justice’ (Australian Institute of Judicial Administration, 7 September 2011) 15-16

19 Louise Ellison, The Adversarial Process and the Vulnerable Witness (Oxford University Press 2002)

At court, the scope of the Intermediary’s role is dictated by the judge. As was made clear in the R v Grant Murray ([2017] EWCA Crim 1228) case, Intermediaries are:

‘ … instructed to provide advice and guidance to the judge (and to the advocates), not to dictate to anyone what is to happen Their role is to provide a report and, if required by the court, to provide assistance to a witness or defendant as directed by the judge. They should not interfere with the functions of others unless specifically directed to do so by the judge. It does not follow from the fact that a judge does not adopt every one of their suggestions or uphold every one of their interventions that a witness or defendant has been treated unfairly. Ultimately the burden rests on the trial judge to ensure the effective participation of a vulnerable person, not on the intermediary.’

Ground Rules Hearing

While the Intermediary ultimately operates at the direction of the judge, best practice dictates that the role’s involvement at trial will be agreed prior at a Ground Rules Hearing (‘GRH’). A GRH is a pre-trial case-management hearing which aims to plan and prepare for how adaptations and accommodations at trial will be implemented. The concept of the GRH was discussed in Part One to this article Fundamentally, the GRH is held to allow the judge to make directions for the fair treatment and effective participation of vulnerable defendants and vulnerable witnesses. As noted in the case of R v Lubemba: 20

‘The ground rules hearing should cover, amongst other matters, the general care of the witness, if, when and where the witness is to be shown their video interview, when, where and how the parties (and the judge if identified) intend to introduce themselves to the witness, the length of questioning and frequency of breaks and the nature of the questions to be asked.’21

When an Intermediary is involved in a case, the GRH is of fundamental importance. The GRH affords the Intermediary the opportunity to discuss with the advocates and the judge any adjustments to questioning and any other recommendations contained within the Court Report. The GRH should establish the rules relating to the manner and duration of questioning, how the Intermediary may intervene if necessary and generally, how the Intermediary will assist the advocates and judge. The judge may also order that the Intermediary reviews the advocate’s questions and provide advice on their suitability considering the witness’s communication needs

20 The Advocate’s Gateway, ‘Toolkit 1: Ground Rules Hearings’

21 R v Lubemba [2014] EWCA Crim 2064

22 MoJ, Registered Intermediary Procedural Guidance Manual22; DoJ, ‘The Registered Intermediaries Procedural Guidance Manual’ (Northern Ireland) (July 2019) 45-46.

24

The judge makes the necessary directions to set the parameters for fair treatment of the witness. GRHs are integral to ensuring the proper questioning of a vulnerable witness or defendant.

In criminal cases in England and Wales, the attendance and participation of an Intermediary (where one is involved) is mandatory The Intermediary ‘must’ attend and ‘actively assist the court in setting ground rules and giving directions’. Further, the court ‘must’ have regard to the Intermediary’s report as well as the representations of the parties and any other information or advice the court requires. In family cases, when the court has decided that a vulnerable individual will give evidence, the guidance requires that a GRH ‘shall be’ held. In Northern Ireland, it was initially decided that the holding of a GRH would be left to the discretion of the judge rather than be a mandatory requirement. Since 2019, Practice Direction No.2/2019for criminal cases in Northern Ireland notes that: 25 26

‘GRHs should ordinarily be held in hearings involving vulnerable complainants and must be arranged where the witness is a child, or where a RI has been appointed to aid communication. A GRH must be attended by the trial judge, all legal representatives and the RI, where appointed, and may take place on the same date as the arraignment and /or CMH, where practicable.’ [emphasis added]

27

There is currently no equivalent requirement to hold a GRH in non-criminal cases and, as such, the judge enjoys a wide discretion Anecdotal evidence suggests that while Intermediaries do routinely attend GRHs in criminal cases in Northern Ireland, their participation can sometimes amount to a ‘tick-box’ exercise. The wording of Practice Direction No.2/2019 requires an Intermediary to attend the GRH, but there is no specific duty on the court to invite their representations/comments/advice beyond what is in the Court Report. As such, there have been instances of ‘perfunctory’ GRHs at which the Intermediary has attended but either sat at the back of court or had little to no opportunity to explain the rationale for their recommendations.

Beyond the courtroom

The core function of the Intermediary role - the facilitation of communication - is broad and open to interpretation While the most obvious application of the role relates to oral testimony, Intermediary involvement with both witnesses and defendants in the criminal justice system has shown that its utility extends beyond the court. For example, Intermediaries can assist police with planning for Achieving Best Evidence (‘ABE’) interviews for witnesses and also with suspect interviews. This can involve a pre-interview meeting to ensure questions are appropriate to the

23 P Cooper, P Backen and R Marchant, ‘Getting to grips with Ground Rules Hearings – a Checklist for Judges, Advocates and Intermediaries’ [2015] 6 Criminal Law Review 420, 431

24 Penny Cooper, ‘Ticketing Talk Gets Serious’ (Counsel Magazine, November 2014) 11–12

25. CrimPR, Rule 3.9.

26 Practice Direction 3AA – Vulnerable Persons: Participation in Proceedings and Giving Evidence, Para 5 2

27 Practice Direction No 2/2019 - Case Management in the Crown court including Protocols for Vulnerable Witnesses and Defendants

vulnerable individual’s communication needs. More specifically, the Intermediary may advise on certain grammar that should be avoided, preferred vocabulary (e.g. particularly in relation to body parts in sexual offence cases) and even advise on environmental conditions that might impact the individual’s ability to communicate (room layout, presence of certain objects and lighting conditions).

Perhaps the most contentious aspect of intermediary practice in Northern Ireland since the RIS was launched has been the extent to which the role can assist lawyers at legal consultations. The statutory scheme does not specifically provide for RI assistance at legal consultations and, as such, it is an operational decision for the DoJ. The initial position adopted by the DoJ was that an Intermediary could attend legal consultations to facilitate communication between a vulnerable defendant and their lawyer. Indeed, in the case of Re Sweeney, the Northern Ireland High Court agreed with the DoJ that: ‘it is desirable to maintain continuity of service and provide the same RI at pre-trial consultations and at trial.’ Three months earlier in the case of R v WP, the Northern Ireland Court of Appeal had rejected an argument that an intermediary should have attended relevant legal consultations and noted that: 28

“Neither the court nor any of those appearing before it in this appeal had ever heard of a Registered Intermediary attending legal consultations Although we did not receive any detailed argument on the point it would arguably be inappropriate for the court appointed RI to undertake such a task on behalf of one of the parties.”29

Since the case of R v WP, the DoJ has maintained the position that the Intermediary role when assisting defendants at court is limited to the period of ‘evidence only’ . While ‘full trial’ appointments are more likely to occur under the ‘ad hoc’ scheme in England and Wales which is based on the inherent powers of the court, Intermediaries in Northern Ireland are unable to accompany defendants in the dock, in discussions with their lawyers or at any other stage of proceedings

Intermediaries, access to justice and ‘reasonable adjustments’

The Intermediary role can play a central role in ensuring access to justice – a fundamental right in itself and a precondition for the protection and promotion of all other human rights. While the right has no universal definition, conceptually it can be said to focus on two fundamentals: firstly, that justice systems are equally accessible to all, and secondly, that they produce results which are individually and socially just. It is well recognised that disabled persons face a range of barriers 30 31

28 An Application by Jonathan Sweeney [2017] NIQB 62

29. [2017] NICA 21.

30 See A/HRC/25/35, para 3

31 M Cappelletti and B Garth, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’ [1978] 27(2) Buffalo Law Review 181; Jacobson and Cooper also point out that access to justice is closely interrelated to the broader principle of participation, see: J Jacobson and P Cooper, ‘Participation in Courts and Tribunals: Concepts, Realities and Aspirations’, Participation in Courts and Tribunals (Bristol University Press 2020) Also see Chapter 7 for further discussion

which can obstruct access to justice, not only because of legal rules but also due to legal traditions, practices and even the physical environment of the justice system.32

One prevailing barrier to ensuring access to justice when considering the Intermediary role at various points in the justice system is the failure to provide reasonable adjustments The Equal Treatment Benchbook (‘ETBB’) in the UK contains specific guidance for judges on ‘the duty to make reasonable adjustment for witnesses, defendants and jurors with disabilities’ to ‘ remove any unnecessary barriers to participation.’ It also notes that Intermediaries may advise courts on the kind of adjustments that might be necessary. While the ETBB relates to courts and tribunals in England and Wales, it was cited with approval in Galo v Bombardier Aerospace (UK) In the decision, the NICA outlined principles and guidance for a fair hearing, including the need to effectively accommodate litigants with disabilities. The NICA also outlined that courts and tribunals should pay particular attention to the ETBB and ensure it becomes part of the ‘culture of hearings’.

Although Intermediaries in Northern Ireland now have a legislative basis, the special measure can still be seen as an ‘adjustment’ or ‘accommodation’ to the traditional adversarial model As Lawson notes, the prevention of access to justice can arise from a failure to provide reasonable adjustments or accommodations before, during and after formal legal proceedings. Since the CE(NI)O 1999 outlines the Intermediary role in broad terms, there is scope for judges to rely both on their inherent powers and the duty to make reasonable adjustments when making novel/innovate directions involving intermediaries For example, judges may make the following types of adjustments to enable participation:

Allowing the Intermediary to sit with the defendant, outside the dock to allow him or her to better hear proceedings and instruct their lawyer. Directing that counsel submit their questions to the intermediary for ‘review’ prior to witness examination.

Permit the Intermediary to draw/make notes in a jotter to help the defendant follow proceedings and understand the evidence. Allow the use of a ‘timeline’ and ‘talking mats’ so the witness can better communicate answers to questions 40

32. Anna Lawson, ‘Disabled People and Access to Justice: From Disablement to Enablement?’ in Eilionóir Flynn (ed), Routledge Handbook of Disability Law and Human Rights (Routledge 2016)

33 Judicial College, ‘Equal Treatment Bench Book February 2021 Edition (April 2023 Revisions)’ (April 2023) 106

34 ibid 97

35. ibid 419.

36 [2016] NICA 25

37 ibid [53]

38 ibid [61]

39.Anna Lawson, ‘People with Psychosocial Impairments or Conditions, Reasonable Accommodation and the Disabilities Convention’ [2008] 26 Law in Context 62

40 For further examples of how Talking Mats are used in the justice system, see: https://www talkingmats com/talking-mats-usedcourt/

Some of these adaptations are more challenging to traditional court practices than others and resistance from the legal profession has at times been staunch. For example, Fairclough, Taggart and Backen identified scepticism among many defence barristers to the Intermediary role and its utility in the criminal process. As Jackson et al noted in their recent report, acceptance of the change in legal culture appears to be somewhat slower in Northern Ireland compared to England and Wales. While progress has been made, there is also a need to recognise that old habits can die hard and that resistance to the Intermediary role still remains.

Part B: Challenges and Opportunities

While the statutory framework for Intermediaries in Northern Ireland is broadly aligned with England and Wales, practice on the ground highlights a number of recurring challenges and opportunities. The role has recently been described as being ‘at a crossroads’ in terms of how its influence may develop The profile of RIs is increasing but it remains to be seen whether the role is on the path to becoming a justice professional in its own right. With this in mind, it is important to consider how the role operates at the coalface. This includes consideration of: the resources available to ensure it operate effectively, the level of training for practitioners, awareness of the role, early identification of need and the role’s applicability in different legal contexts. Looking ahead, it’s crucial to also consider how the evidence base for Intermediary involvement is kept current.

Budget and Resourcing Issues

As awareness of vulnerability increases across the justice system, the need for specialist communication assistance invariably grows too While the RIS currently has approximately 33 Registered Intermediaries, the reality is that many more are needed to meet the demand across both criminal and civil courts. Budgetary constraints continue to limit the consistent use of Intermediaries In the employment tribunal context, for example, an application for an RI will typically need to be supported by an educational psychologist’s report, for which no legal aid funding is available If the tribunal appoints an RI, the cost is met from the tribunal’s own budget, and the RI will then conduct their own assessment and prepare a report. Several Ground Rules Hearings can be required, which can create additional delay. Similarly, in criminal cases, reliance on public funding mechanisms and the limited pool of available RIs can result in adjournments, raising concerns about equality of access across different jurisdictions.

41. S Fairclough, J Taggart and P Backen, ‘Lost in translation? Perceptions of Defendant Intermediaries in the Legal Profession’ [2023] 7 Criminal Law Review 440

42 John Jackson et al, ‘Mapping the Changing Face of Cross-Examination in Criminal Trials’ (Nuffield Foundation, February 2024) 11 43 John Taggart, ‘At a Crossroads? Rethinking the Intermediary Role in Criminal Justice’ (Centre for Law as Protection, Deakin University, Melbourne, Australia, 26 August 2025).

Training for Practitioners

While awareness of vulnerable witness needs has improved, formal training on the use of Intermediaries remains inconsistent. The Institute of Professional Legal Studies (IPLS) does offer a vulnerable witnesses course, but attendance is not mandatory. This mirrors the position in England and Wales where, where despite repeated calls for mandatory training for the legal profession, the Advocacy and the Vulnerable course organised by the Inns of Court College of Advocacy (‘ICCA’), remains voluntary. This is despite the 2011 Raising the Bar Report identifying a ‘clear and pressing need’ for training for advocates and making several ‘practical and far-reaching recommendations.’ Given the increasing prevalence of cases involving vulnerable witnesses and defendants, there is a strong argument that such training should be incorporated into the standard IPLS curriculum for all trainees. Furthermore, specialist training could be made mandatory for those who wish to act in cases where Intermediaries are likely to be involved, thereby ensuring a consistent baseline of practitioner competence.

44

Awareness of the Role

Even where RIs are available, there is often limited awareness among police and legal practitioners of their precise role and function At the police station, for example, the distinction between the RI role and the Appropriate Adult can become blurred. Appropriate Adults attend police custody to ensure that suspects under 18 years and mentally vulnerable adults over 18 years are interviewed according to Police and Criminal Evidence Codes of Practice While RIs are neutral and independent of either side in the criminal process, Appropriate Adults support, assist and advise the vulnerable suspect Early findings from empirical work conducted in custody suggest that the ‘threshold’ for RI involvement is conceptually unclear. Anecdotal evidence suggests that some lawyers still view RIs as quasi-support workers rather than as communication specialists with a defined statutory role. This lack of understanding can result in underuse, late applications, or resistance to implementing the RI’s recommendations. Better dissemination of guidance, along with practical workshops or CPD events, could improve practitioner confidence and ensure the role is used more effectively. As the England and Wales Court of Appeal recently noted in the case of Re M (A Child: Intermediaries), a ‘collaborative’ approach must be adopted when approaching the Intermediary role. This must surely extend to shared learning among different professionals involved in these kinds and, crucially, to improve understanding of respective roles 45

46

Early Support for Defendants and Witnesses

The vast majority of RI appointments in Northern Ireland relate to criminal proceedings In 2024/2025, 30% of all Intermediary referrals were for suspects/defendants. 65% of requests

44 The Inns of Court College of Advocacy (ICCA), ‘Raising the Bar’ (2011) available at: https://www icca ac uk/wpcontent/uploads/2019/07/Raising-the-Bar pdf

45 This research, conducted by Dr John Taggart, involves a series of semi-structured interviews with police officers, Registered Intermediaries, Appropriate Adults and Forensic Nurse Practitioners (FNPs).

46 [2025] EWCA Civ 440 [7]

related to ‘complainant/victims’ while the remaining 5% of requests were for ‘other witnesses’. Within the criminal process, Intermediaries are sometimes not engaged until trial, by which time communication difficulties may already have caused significant disadvantage. For example, in 2024/2025, almost 18% of Intermediary requests were made at the court stage As such, vulnerable defendants and witnesses do not consistently receive support at the police station stage, despite this being the point at which key evidence is gathered. This reactive approach means problems are often only identified during trial preparations, arguably leading to crisis management rather than proactive safeguarding. 47

It must be noted that the RIS in Northern Ireland does extend to suspects at the investigative stage, unlike England and Wales where the HMCTS Appointed Intermediary Services is available for court proceedings only. Nonetheless, when comparing the levels of vulnerability we know exists at the early stages of the criminal process compared with how often Intermediaries are appointed, there is an obvious discrepancy. As such, expanding Intermediary provision at the investigative stages would better protect the right to effective participation. For example, an ‘inbuilt’ permanent Intermediary service at police custody would go some way to addressing the level of need. A ‘triage’ system, whereby Intermediaries provide telephone advice to police when screening, has been suggested in the past but never materialised.48

Untapped Potential in Wider Areas of Law

There are also areas of civil law where the RIS has significant but underutilised potential. For example, chancery actions involving allegations of exploitation of elderly or otherwise vulnerable individuals may require vulnerable parties to give evidence about complex financial or property matters Indeed, many vulnerable adults and victims of domestic abuse are at risk of being coerced or manipulated in relation to property. In such cases, intermediary support could be vital in ensuring that the vulnerable person can participate fully and that the court can test the evidence fairly At present, uptake of Intermediaries in such contexts remains rare, largely due to lack of awareness and the absence of formal mechanisms for funding.

Conclusion

The Intermediary role has transformed the participation of vulnerable individuals in the justice system, representing one of the most significant cultural shifts in trial practice in recent decades Northern Ireland’s adoption of a unitary model has placed it ahead of England and Wales in terms of parity of provision, but persistent challenges remain. Budget constraints, gaps in practitioner training, and the absence of systematic evaluation all limit the scheme’s potential While statistics are collected by the Departement of Justice on the number of intermediary appointments, there

47. All statistics provided by the Department of Justice (Northern Ireland).

48 Bridget Pettitt et al, ‘At risk, yet dismissed: The Criminal Victimisation of people with Mental Health Problems’ (Victim Support/Mind 2013)

has been little evaluation of the impact of intermediaries on the quality of evidence produced, witness satisfaction, or overall court efficiency in Northern Ireland. The initial RIS pilot was reviewed in 2015 and 2016, but since then, there has been no external evaluation of the kind that has recently taken place in places like Tasmania and ACT in Australia The absence of structured feedback means that policy decisions may be made without a clear evidence base. A formal, independent evaluation of the RIS would provide valuable insight into its effectiveness, highlight best practice, and help identify areas for reform. Without such data, it remains difficult to assess whether the scheme is truly meeting its objectives of enhancing access to justice.

Yet, the opportunities are clear. With greater investment, improved training, earlier engagement at investigative stages, and broader application across civil and tribunal contexts, intermediaries could play an even greater role in securing access to justice. Ensuring that the scheme develops in a way that is sustainable, consistent, and evidence-based will be key to embedding Intermediaries as an indispensable part of the justice landscape in Northern Ireland.

A Practical Guide to Dealing with Digital Assets

Andrew Kirkpatrick, Solicitor, Boyd Rice Solicitors

The issue of digital assets is one which has undergone a huge expansion in recent years and this has meant that practitioners have had to catch up with this rapidly changing and developing world. The way that assets are dealt with both after incapacity and after death has changed and this article seeks to provide some practical guidance to practitioners navigating their way through this new landscape.

Throughout this article, I will refer to dealing with assets on death for simplicity, but it should be read to include incapacity, as similar issues arise.

Defining a Digital Asset

As ever for lawyers, the place to start is with a definition. Very simply, a digital asset can be defined as any asset accessed or held online

Digital assets can be separated into three broad categories:

1. Financial – for example, online bank accounts, online share dealing or investment accounts, online shopping or auction accounts and cryptocurrencies;

2. Social – for example, Facebook, Instagram and YouTube;

3. Sentimental – for example, photos and videos held in an iCloud account or similar.

This has been a developing area over the past number of years and the legal position is not yet settled, either in the UK or internationally, but progress is being made. There is recent legislationthe Property (Digital Assets etc) Act 2025 - which will help to clarify the legal status of digital assets. Broadly, the Act provides that digital assets are to be considered personal property and therefore afforded the same legal protections as traditional personal property

1

The Act expands on the two existing distinct categories of property – ‘things in possession’ (such as cars and money), and ‘things in action’ (such as shares or debt) - to create a third category of property: a ‘thing (including a thing that is digital or electronic in nature)’ (such as a crypto token).

1. https://www.legislation.gov.uk/ukpga/2025/29/contents/enacted

Taking Instructions

Asking clients to consider their digital assets is not straightforward, even before we consider how to deal with those assets once they have been identified. The traditional approach of probate solicitors who asked the relatives of the deceased person to bring in every piece of paper with a letterhead on it and then write to all of those companies is no longer practical. Increasingly, it is unlikely that there is a hard copy paper trail for the majority of assets.

To assist when taking instructions, I would recommend referring to the STEP Inventory for Digital Assets and Digital Devices. This covers an extensive range of digital assets and will help to focus the mind of the client in relation to their digital estate.

2

The types of area in which clients may have digital assets are:

1. Online inventory management vaults and accounts, such as Legacy Concierge, MyWishes etc;

2. Email providers, for example, Gmail, Yahoo etc;

3. Social media platforms, such as Facebook, Instagram, Linkedin etc;

4 Communication and collaboration platforms, including Whatsapp, Teams, Family Organiser etc;

5 Digital photos and video providers, for example, iCloud, Photobucket, Flickr;

6. Cloud-based data storage providers such as Citrix, Dropbox etc;

7. Household IT providers, such as Sky, BT, Virgin etc;

8 Password managers, for example, Apple Keychain, Last Pass etc;

9. Funeral, legacy and genealogy providers such as local undertakers, Ancestry.com;

10 Trading or hobby platforms, for example, gambling accounts, avatars and trading accounts; 11. Cryptocurrency, including Bitcoin, non-fungible tokens (NFTs) etc.

Care should be taken when dealing with digital assets. Passwords should be stored separately from inventory and there should be a discussion with the client as to how and when access can be provided Password sharing is prohibited on most online accounts so an adviser should refer to the provider’s terms and conditions to avoid any potential data breaches.

One of the other difficulties with digital assets is that they tend to change more quickly than traditional assets. It is quicker and easier to move investments to new accounts and passwords need to be frequently updated for most accounts. It can be difficult to keep track of these changes. The importance of keeping any inventory up to date should be emphasised to the client

2 Inventory for Digital Assets and Digital Devices Available at https://www step org/knowledge-hub/inventory-digital-assets-anddigital-devices

Identifying Assets

One of the most important steps after death is to the secure the phone, tablet or laptop and ensure that they can be accessed The responsibility for doing this falls legally to the personal representative. Where this is not the deceased’s partner or other family member, this can be sensitive and care should be taken to ensure that relations are maintained to make this as smooth a process as possible.

Once access has been obtained, then information can be extracted to obtain a picture of the estate. An IT specialist may need to be consulted to go through the hardware to ensure everything is captured.

Care should be taken that if any of the logins pre-populate that this should not be deleted. This can be vital particularly for cryptocurrencies. It is also important to ensure that the deceased’s email account can be legitimately accessed as it can be used to reset passwords to allow the personal representative to login to a particular website.

IHT considerations

Once the assets have been identified the next question is how to value the assets for inheritance tax purposes.

There are a number of different ways of valuing cryptocurrencies with NFTs being considered to be particularly difficult to value This is very much a developing area Valuation will also depend on whether access can be obtained to the cryptocurrency. If access cannot be obtained then the asset is ‘ gone ’ and there is an argument that this should therefore be valued at zero for inheritance tax purposes

The other point is that the value of cryptocurrencies tend to fluctuate more than traditional types of asset This is a risk for a personal representative because if they cannot deal with the asset in a timely manner and the value suddenly drops, then they may be liable to a disappointed beneficiary who will only receive a fraction of what they expected to receive

For cryptocurrency, HMRC has published guidance advising that it is considered to be an asset of the deceased and subject to inheritance tax in the normal way 3

Where IHT is to be paid, it must be noted that it not possible to use cryptocurrency to pay the tax under HMRC’s direct payment scheme

3 HMRC, Cryptoassets Manual Available at https://www gov uk/hmrc-internal-manuals/cryptoassets-manual

Access

Once any inheritance tax is dealt with and the Grant obtained, it can still be difficult to access digital assets and encash them. There can often be international issues depending upon where the digital asset host is located and a Grant in that jurisdiction may be required

For cryptocurrency, using Bitcoin as an example, it is accessed using an address (similar to a bank IBAN) and a private key (which is the PIN). Both are stored in a digital wallet by the owner to be more safely retrieved If the password for the digital wallet pre-populates on the deceased’s ipad or laptop then access should be achievable. If the address and the key have not been either prepopulated, noted elsewhere by the deceased or saved with a third party professional custodian then access may be lost. If access cannot be obtained then the asset is gone and cannot be retrieved.

It is important that if you do have clients with cryptocurrency then there needs to be a discussion with them about to access the asset if they die. Generally, the cryptocurrency companies do not have a robust legacy service that will enable access after death and cannot be relied upon.

A different route to accessing digital assets would be to try to reset the passwords using the deceased’s email address. If there is access for the personal representative without breaching the terms of use then they can do this directly; however, if the personal representative needs to deal with the email service provider to access the account then they will likely need a Court Order.

The Future

Against a rapidly evolving digital landscape, the message to clients is that their circumstances will be greatly improved if they make an Enduring Power of Attorney and a will and an inventory of their digital assets. This will undoubtedly make the administration of their estate much more efficient. The emphasis should be on educating clients to ensure that valuable assets are not lost whenever someone dies

In wider policy terms, the international regulatory framework is currently very piecemeal. The US in particular is progressing legislation to put some order to the situation. This has not been fully completed yet and it is anticipated that this will be an evolving area for a number of years.

4

There is also increasing information-sharing between the Organisation for Economic Cooperation and Development (OECD) countries, including the UK, to bring more cryptocurrencies within the tax regime This may assist the personal representatives of estates as it may be an additional source of information to try to piece together the assets of a deceased person.

4.Fiduciary Access to Digital Assets Act, Revised. https://www.uniformlaws.org/committees/community-home? communitykey=f7237fc4-74c2-4728-81c6-b39a91ecdf22#LegBillTrackingAnchor

New Publication:

Dr John Taggart, The Intermediary in the Criminal Justice System (Routledge 2025)

Dr John Taggart’s new book concentrates on the sometimes-misunderstood role of the intermediary in the criminal justice system Including a comprehensive review of caselaw from the UK and elsewhere, Dr Taggart examines the emergence of this role, challenges, and how intermediaries can support vulnerable people such as children and those with disabilities. Indeed, it becomes clear that intermediaries have a key role to play in ensuring active participation and access to justice for vulnerable people. This book will be of interest to criminal law practitioners and anyone interested in measures aimed at facilitating communication for vulnerable people within the criminal justice system

Casenotes

Alex Cisneros, Barrister, 39 Essex Chambers

Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025] EWCOP 7 (T2)

Jurisdiction: deputyship for minor under 16, habitual residence abroad, assets in England & Wales

KS is a UK-born child under the age of 16 who suffers from severe brain damage since birth, requiring 24-hour care and lacking capacity to manage her property and affairs. In 2017 a deputyship order was made in England appointing Irwin Mitchell Trust Corporation Ltd (IMTC) as deputy for her property and affairs, under the Mental Capacity Act 2005 (noting s18(3) MCA gives jurisdiction over property of persons under 16 who are likely to lack capacity on turning 18).

In 2018 her family moved to India (non-Contracting State for the relevant Hague Convention). Although her habitual residence changed to India, she retained property and substantial assets in England & Wales. The deputy applied for authority to purchase property in India and make lifetime gifts from KS’s funds; the Official Solicitor (acting as litigation friend) challenged that the English court (Court of Protection) lacked continuing jurisdiction.

Senior Judge Hilder considered what the Court of Protection could do for KS, who is no longer habitually resident in England & Wales but whose property and affairs (including assets in England & Wales) were subject to deputyship.

The Official Solicitor argued that the court no longer had jurisdiction to determine the deputy’s request for authorities in respect of expenditure from her funds. The deputy sought to argue that it did, either by virtue of the operation of s47 MCA 2005 (importing the powers, rights and privileges of the High Court), or on a pragmatic basis.

Senior Judge Hilder found her own route to maintaining the court’s jurisdiction. The judge decided that the Court of Protection still had the power to deal with the deputy’s application. This was because: HELD

The deputy was appointed while KS lived in England and Wales, so the court had proper authority at that time under section 18(3) of the Mental Capacity Act 2005

The Hague Convention says that a protective measure made in one country can stay in place even after someone moves abroad, unless the new country formally replaces it Although India is not signed up to the Convention, the court treated its national law as allowing the English order to continue.

KS still owns significant assets in England and Wales, so it was sensible and fair for the Court to keep responsibility. Asking the Indian authorities to take over would have been ‘unworkable ’

Hemachandran v Thirumalesh [2024] EWCA Civ 896

Capacity to make medical-treatment decisions: belief in diagnosis not a free-standing requirement

The appeal involved a 19-year-old woman called Sudiksha, who had a rare and worsening genetic condition called Mitochondrial Depletion Syndrome RRM2B There is no known cure for the condition. She was kept alive with a ventilator, dialysis, and a feeding tube.

Doctors from University Hospitals Birmingham NHS Foundation Trust asked the Court of Protection to decide whether Sudiksha had the mental capacity under the Mental Capacity Act 2005 to make decisions about her medical treatment, including whether to stop life-support treatment and move to palliative care.

The first judge decided that she did not have capacity because she did not believe what the doctors said about her medical condition and so could not properly think through or weigh up the information. Her parents and the Official Solicitor, acting on her behalf, appealed that decision

Does the functional test for capacity under s3 MCA 2005 require the decision-maker (here Sudiksha) to believe the information presented (diagnosis, prognosis, treatment options) in order to ‘understand’, ‘ use or weigh’ relevant information?

In the assessment under s2 (‘diagnostic’) and s3 (‘functional’) of the MCA, what role does the decision-maker’s refusal or inability to accept the clinician’s prognosis play?

Did the Court of Protection judge err in rejecting unanimous expert opinion that the patient had capacity, without adequate reasoning?

HELD

The Court of Appeal held:

Section 3(1) MCA provides that a person is unable to make a decision if they cannot (i) understand relevant information, (ii) retain it, (iii) use or weigh it, and/or (iv) communicate the decision.

There is no separate or free-standing requirement under the statutory test that the person must believe the information A mere disbelief (or refusal to accept the information) does not automatically mean the person fails the functional test. While disbelief may of course be relevant, if it shows the person cannot understand the implications, or cannot use or weigh the information, it is not determinative in itself. The key is to apply the statutory words without adding a gloss (i.e., requiring belief).

The judge’s finding of incapacity was also flawed because she rejected the unanimous expert evidence that Sudiksha did have capacity, yet failed to give adequate reasons for doing so

The court also reaffirmed that a formal psychiatric or psychological diagnosis is not always required to show an ‘impairment of, or disturbance in, the functioning of the mind or brain’ under s2 MCA

Therefore, the declaration of incapacity was set aside.

CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3)

Final declarations: litigation-friend appeal on capacity to decide residence, care and proceedings

The case concerned an adult (‘CT’), with significant cognitive impairment and partial sight, whose litigation-friend (the Official Solicitor) appealed against a judgment of HHJ Beckley dated 5 September 2024. In that judgment final declarations were made that CT lacked capacity to conduct legal proceedings, to make decisions about his residence and to make decisions about his care needs.

The appeal was limited to the declarations regarding residence and care. The grounds of appeal included: (1) challenge to the definition of ‘relevant information’ (arguing the judge set too high a bar and improperly treated the mental impairments as needing to be understood and used/weighted by CT); (2) challenge to the sequence of the capacity test (arguing the judge started by focusing on impairment rather than first walking through the functional test under the Mental Capacity Act 2005); and (3) that the factual matrix had changed and the judge failed to account for that in a time- and decision-specific assessment of capacity

The principal issue was whether the judge had erred in his approach to the capacity assessment under the Act. In particular:

Did the judge correctly identify the ‘relevant information’ that CT needed to understand, retain, use or weigh and to communicate?

Did the judge properly apply the two-stage test of capacity: first the functional test (under s2) then, only if inability is established, the causative impairment question (s3)?

Did the judge sufficiently recognise that capacity must be decision- and time-specific and account for any change in CT’s circumstances?

The court held that the authorities demand a clear two-stage approach to capacity assessment. First, identify whether the person is unable to make a decision regarding a specific matter by reference to whether they can (i) understand the relevant information; (ii) retain that information; (iii) use or weigh it; and/or (iv) communicate the decision (s2 MCA 2005) Only if that inability is established should the court go on to ask whether it is because of an impairment of, or disturbance in, the functioning of the mind or brain (s3).

In CT’s case the judge had, the court found, conflated the two stages by beginning with the mental impairment and treating that as determinative of inability, rather than first conducting a careful functional test In doing so, the judge risked circular reasoning, in effect concluding that because CT had a cognitive impairment, he therefore lacked capacity, rather than objectively assessing his ability to use or weigh relevant information. The court emphasised that such an approach undermines the safeguards of the Act.

In addition, the court observed that some of the evidence pointed to CT having insight into his physical deterioration, being aware of his increasing frailty and changing residence needs The judge had not adequately accounted for that in his assessment of the ‘ use or weigh’ limb and the changing factual context.

HELD

The appeal was allowed. The judgment was set aside insofar as the declarations were made based on the flawed capacity assessment approach. The case is remitted (or further hearing required) to apply the two-stage test correctly and to ensure the analysis of functional ability is properly separated from the causative impairment question

This decision underscores several practical points for practitioners dealing with capacity assessments in deputyship, litigation-friend and other Court of Protection proceedings:

When drafting capacity evidence (e.g., from expert witnesses, social workers, clinicians), be alert to the order: first functional assessment, then causation

The identification of ‘relevant information’ must be carefully tailored to the specific decision (residence, care, proceedings) and should not include the fact of impairment itself as something the person must understand.

Insight, change in circumstances, fluctuating ability, and decision-specific timing must all be captured and signposted in capacity assessments

When challenging capacity evidence, check whether the assessor or judge has conflated impairment with inability, or reverse-engineered the test from the presence of diagnosis to inability.

Casenote

Claire McNamee and Elizabeth Dowling, Law Society of Northern Ireland

In re Estate of Cowley, decd; Johnson v Attorney General [2025] EWHC 1943 (Ch)

This case concerned the sealing of a will in the High Court of England & Wales of Frank Cowley deceased aka Freddie Scappaticci - an alleged member of the Provisional Irish Republican Army and allegedly a British spy code-named ‘Stakeknife.’ Administration of estates: sealed wills

The initial executors named in the will had renounced their rights. An individual subsequently agreed to act as the personal representative of the deceased on the proviso that their identity was not revealed and the will was sealed.

The application was made under Section 124 of the Senior Courts Act 1981 and Rule 58 of the Non-Contentious Probate Rules 1987, and was the first application made on this basis, other than applications made on behalf of the Royal Family The hearing was conducted in private

The draft Order contained provisions:

1. To seal the will for 70 years

2 For no copy of the will to be kept on record in the Court files

3. For no inspection of the will without the consent of the Chancellor of the High Court.

4 To remove the requirement allowing HMRC insisting on a copy of the will being submitted as part of the inheritance tax filings.

5. A limited confidentiality Order to prevent non-parties obtaining a copy of the documents.

The applicant submitted that due to the background of this case which included risks of harm and threats to the deceased during his lifetime, that those risks extended not only to the personal representative but also any other person named in the will by association. The application was supported by the Attorney-General

Using the basis of the application made relating to the late Prince Philip’s will, the general factors made out in favour of public inspection were detailed:

a) Respecting the testator’s wishes

b) Notifying and tracing beneficiaries

c) Notifying creditors

d) Notifying others who may hold another will

e) Alerting anyone who may wish to make a claim for provision

The Attorney General also referred to journalistic or historic interest and prevention of fraud.

HELD

The Court held that the rationale for sealing the will outweighed the factors in favour of public inspection of the will noting in relation to a) and b), there was no risk of this given that the will would be professionally administered. On c) the Court determined that creditors would be aware and that points d) and e) the high-profile nature of the matter would have alerted holders of another will or anyone with a claim

It had also been submitted as part of the personal representative’s application that Articles 2 (Right to Life), 3 (Prohibition of Torture) of the ECHR were engaged and if publicised, Article 8 (Right to Private and Family Life) would also be engaged. The Court held that as the test had been satisfied so as to permit the Order for sealing under Rule 58 and so it was not necessary to consider the ECHR, although further noted that case had also been made and this strengthened and supported the case for sealing the will under Rule 58.

The Court determined that the will would be sealed for 70 years, and inspection would require the consent of the Chancellor of the High Court The additional requests in the draft Order at points 4-5. would follow as ancillary Orders as a consequence of the Order.

Published by The Law Society of Northern Ireland