Judge lifts order for nursing home detention of man in 50s with alcohol addiction

Legal test for deciding a person’s capacity is not a ‘best interests’ test, High Court rules

A man with a serious alcohol addiction who was taken into wardship and detained in a nursing home against his will under High Court orders earlier this year has been discharged from wardship with the detention order lifted.

Ms Justice Niamh Hyland ruled that the view of a consultant psychiatrist that the man, single and aged in his late 50s, continues to lack capacity was based on the wrong legal test for capacity. One cannot take into account a person’s best interests when considering their capacity, she said.

She took into account the man’s own evidence, including his “important” statement: “I know I’ll be dead if I drink,” in concluding the detention and wardship orders should be lifted.

The psychiatrist was one of two psychiatrists who considered it was very likely, given the very poor state of the man’s health when detained in the nursing home earlier this year, he would continue to drink alcohol with “disastrous consequences” if he went home.


Both essentially considered it was in his best interests to remain in the nursing home. One referred to his long history of repeated falls, malnutrition and high risk of recurrent seizures.

A third consultant psychiatrist concluded the man has regained capacity, had made a “remarkable cognitive recovery” and that his previous presentation, which lead to him being taken into wardship, was when he was extremely badly affected by his alcohol addiction.

That psychiatrist said, in relation to alcohol, the man is an addict likely to make bad, but capacitous, decisions. Although he tended to minimise his addiction, he was capable of looking at alternatives and weigh them up, she said.

Minimising the extent of addiction and the extent of drinking are characteristics of addicts and “did not necessarily point in any way to lack of capacity”.

The man has had a history of hospital admissions, many related to his alcohol addiction. He was made a ward last May, on the application of the HSE, and detained in the nursing home. The medical evidence at that stage included opinion that he had Korsakoff’s syndrome, a memory disorder that results from vitamin B1 deficiency and is associated with alcoholism.

During a review of his case before the High Court last month, Ms Justice Hyland received updated medical reports and heard oral evidence from two psychiatrists, one arguing the man continues to lack capacity and the second maintaining he has regained capacity. The man also gave evidence.

Both psychiatrists concurred he no longer has Wernicke’s syndrome, the first stage of Korsakoff syndrome.

Lawyers for the HSE supported discharge from wardship while the general solicitor for wards of court, representing the man’s interests in wardship, supported the continuation of the orders.

Ms Justice Hyland ruled in late October the wardship and detention orders should be lifted and her written judgment was published in recent days.

She concluded the approach used by the psychiatrist who determined the man lacked capacity was not in keeping with the existing law on capacity because it centred on his “best interests”.

She said she was not referring to the Assisted Decision-Making Capacity Act 2015 – which sets out a four part test for capacity centred on the will and preferences of the relevant person rather than their best interests – because that Act has not yet been fully commenced.

The view the man lacked capacity was essentially based on the doctor’s conclusion it was not in his best interests to leave the nursing home because he was very likely to continue to drink alcohol with disastrous consequences and would have a much better quality of life in an environment with others with whom he could have constructive or entertaining conversations, she said.

She took into account the “very important” evidence of the ward himself, the person whom the hearing was about. From her brief conversation with him, he seemed to understand the dangers of his addiction and the consequences if he went down that road again, she said.

The general solicitor, the judge concluded, does not now have the evidence for continuation of the wardship and detention orders. There was no blame or criticism of the general solicitor in seeking to have the orders extended, given the psychiatric report the man lacked capacity, she stressed.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times