Health Service Executive v A.M.

[2026] IEHC 190 THE HIGH COURT CAPACITY [2024/222MCA] IN THE MATTER OF ARTICLE 40.3 AND 40.4 OF THE CONSTITUTION AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT BETWEEN HEALTH SERVICE EXECUTIVE APPLICANT AND A.M. RESPONDENT JUDGMENT of Mr. Justice Barry O’Donnell (ex-tempore) delivered on the 18th of March 2026 INTRODUCTION 1. In this application, the court has to address contested evidence about whether the respondent is a person that lacks capacity to make certain important decisions. There was a hearing before the court on Friday last the 13 March 2026, and in light of the urgency of the issues the court will deliver this short ex tempore ruling that hopefully addresses the core issues that fell to be determined. 2. As this case concerns the medical and welfare circumstances of a vulnerable adult, orders have been made pursuant to s. 27(1) of the Civil Law (Miscellaneous Provisions) Act 2008. Those orders have the effect of prohibiting the publication or broadcast of anything that identifies or could identify the respondent. For the purposes of this judgment, I have anonymised references to the respondent and avoided references to matters that could lead to her identification. 3. The proceedings concern a respondent, currently aged 62 years old, who has been the subject of proceedings since May 2024. Since that time, the respondent’s circumstances and the continuing need for the orders have been the subject of regular reviews. The granting and continuation of the orders have been grounded, among other matters, on (a) ongoing evidence that the respondent lacked functional capacity to make decisions around her care, treatment and residence, and (b) ongoing evidence that the orders were required in order to vindicate her rights and to avoid her coming to harm, such that the orders amounted to a proportionate interference with her rights. 4. In very broad terms, a critical feature of inherent jurisdiction proceedings is that decisions have to be made in respect of the person concerned, and, if they were not made, the person concerned likely would come to harm. However, the jurisdiction can only be utilised where there is satisfactory evidence that the person concerned lacks the legal capacity to make those decisions. In turn, that reflects the fundamental principle that an adult is presumed to have capacity, and, unless that presumption of capacity is displaced, an adult is fully entitled to make decisions about their own welfare and circumstances, whether those decisions are considered by others to be wise or unwise. THE ISSUE TO BE ADDRESSED 5. On foot of clinical and other evidence, that has been updated regularly, the Health Service Executive (the HSE) applied for and were granted orders concerning the respondent, including orders providing for the appointment of a guardian ad litem. As part of the overall suite of orders, the respondent has been accommodated in a nursing home in the northeast of the country. The orders in place amount to detention orders because the respondent is not free to leave the nursing home and she can be prevented from leaving by the persons in charge of the nursing home. 6. While there was no dispute that the nursing home placement was required and benefitted the respondent, and that the care provided to the respondent was of a high quality, concerns were expressed about its overall suitability for the respondent since the commencement of the proceedings. a. The first concern was that the nursing home generally accommodated persons who were quite a bit older than the respondent, and the clinicians and others involved in her care considered that she would be better accommodated in a placement that had a younger population. The court is satisfied that throughout the currency of the proceedings the HSE has made substantial but unsuccessful efforts to identify a more suitable facility for the respondent. b. The second concern was that at all times the respondent has made clear that she did not want to be in the nursing home and that she wanted to return to her home, which she shared with two of her daughters. The respondent’s wishes have been conveyed consistently to the court through her guardian ad litem and by the respondent herself when she participated remotely in the proceedings. 7. On Monday the 9 March 2026, the court met with the respondent in person. The respondent conveyed her strong and clear wish to leave the nursing home and return home. That was subject to her proviso that she acknowledged that she needed assistance in certain areas and that she would be willing to consider attending some form of step-down placement, so long as this was reasonably close to her home. The respondent, not at all unreasonably, wanted to be able to do normal things such as going for walks around her hometown and visiting shops. 8. The precipitating factor for the recent application was that a real question had arisen as to both the proper medical characterisation of the respondent’s underlying condition and whether she has capacity to make the decision to return to her home and to make complex financial decisions. 9. It is important to note that all the clinicians who gave evidence to the court acknowledged the complexity of the respondent’s presentation and underlying circumstances. The evidence that the court heard, and the manner in which it was presented by the parties, reflected a conscientious and open attempt to assist the court and to meet the respondent’s interests properly and proportionately, and the court is very grateful to everyone concerned for their professionalism and very considerable efforts. THE HISTORIC REPORTS 10. Until relatively recently, the HSE application was based on evidence from a variety of sources which addressed the respondent’s social circumstances, her history of engagement with medical and mental health services and her provisional diagnoses. It is not necessary to provide a comprehensive account of the historic concerns, but some elements need to be noted as they shed light on the issues that were considered at the most recent hearing. 11. Prior to the commencement of the proceedings, the respondent had lived at home with two of her three daughters, and the partner of one of her daughters. The respondent had first presented to the adult mental health services in August 2020, with concerns regarding a deterioration in her functioning and behaviour. Between August 2020 and January 2023, the respondent had 10 inpatient admissions to her local department of psychiatry and regular outpatient psychiatric appointments with community adult mental health services. In addition to her mental health issues, the respondent had also presented to the emergency department of her local hospital on 42 occasions with complaints relating to stomach pain, chest pain, blood pressure, palpitations and hyponatremia due to excessive water consumption. She had inpatient admissions to the hospital on 14 occasions under the geriatric, endocrinology, nephrology and neurology departments. 12. During those hospital admissions, the respondent required close supervision and presented with heightened anxiety, and disruptive and high-risk behaviours. She required prompting and assistance to attend to nutrition and self-care tasks such as grooming, showering and changing her clothes. The concern at the time was to find the correct formulation of what was causing the respondent’s serious observed behavioural and functional disturbances. 13. The respondent had been referred to St. James's Hospital and reviewed by them in March 2023. Following a number of tests, the hospital confirmed a diagnosis of behavioural variant frontotemporal dementia (bvFTD). A diagnosis of bvFTD essentially describes a neurodegenerative condition that is irreversible and progressive. The assessment highlighted that the respondent required 24-hour supervision and care and recommended follow up for exploration of a suitable placement to meet her needs. Further medical and occupational therapy assessments completed by the adult mental health services highlighted that the respondent required constant supervision to prevent hyponatremia, wandering, and risk of fire at home due to reports that the respondent was leaving lit cigarettes in inappropriate places in her home. 14. Of some significance to this application, concerns were expressed in relation to certain safeguarding issues within the home. In the period immediately prior to the initial application, there had been considerable consultation between HSE representatives and the respondent’s family around concerns that the respondent had been wandering unaccompanied in circumstances where she may have placed herself at risk. The HSE, on foot of a safeguarding assessment, highlighted that the respondent presented at risk of inadvertent self-harm and also potential hazard or harm to others. The risks arose due to excessive water consumption, wandering and leaving lit cigarettes unattended in the house. There was also a concern in relation to the partner of one of her daughters. The suggestions were that this person presented as being angry and impatient towards the respondent, and that he behaved in an intimidating and potentially physically violent manner towards the respondent. A further concern was expressed in relation to the respondent’s vulnerability to financial exploitation, which arose against the backdrop of the respondent having entered a hire purchase agreement to buy a car, and where she was very distressed by her inability to meet repayments and the resulting visits from debt collectors. 15. Shortly prior to this hearing there had been a developing medical consensus that the respondent did not suffer from bvFTD. The diagnostic review was prompted by the fact that, instead of deteriorating, the respondent’s cognitive state appeared to have stabilised and improved and her behaviour was far more settled in the nursing home. It is not necessary to go into the details of how that development occurred, save to set out that the court was provided with an uncontradicted report from Prof Siobhan Hutchinson, a consultant neurologist from St. James’s Hospital. 16. In her comprehensive report, Prof Hutchinson explained that, in 2023, brain MRIs had revealed a level of mild generalised atrophy, and an FDG PET brain scan was reported as significantly abnormal with, inter alia, markedly reduced metabolism in bilateral prefrontal cortex. These observations when combined with the history of behavioural change – including apathy disinhibition, obsessive over-drinking and dysexecutive features – led to the determination that the respondent met the criteria for a diagnosis of probable bvFTD. 17. Following further tests that were prompted by the apparent improvement in the respondent’s condition, Prof Hutchinson explained that the improvement in the respondent’s behaviour, her stable cognitive scores and improvements noted in the FDG PET imaging pointed to something other than a neurodegenerative disorder such as bvFTD. Prof Hutchinson explained that this could be described as phenocopy FTD: where there are symptoms and signs that are diagnostic for bvFTD but neither the temporal course nor imaging support a neurodegenerative disease. She explained that this often only emerges after the situation has been studied over time, and often the clinical features are determined to be due to a sub- threshold psychiatric or psychological disorder. Prof Hutchinson explained that she was not a psychiatrist but that she did not disagree with diagnoses that had recently been provided by Dr Atiqa Rafiq and Dr Sarah O’Dwyer. However, she cautioned, regarding the respondent that; “ … despite improvements since her initial assessments, she still has mild cognitive impairment (attention/executive domains), abnormal behavioural traits and a mildly abnormal FDG PET brain that warrants continued follow- up over time. Though, I agree, all could be explained by a psychiatric or psychological disorder, I think continued follow-up is warranted to confirm this.” THE EVIDENCE AT THE HEARING 18. At the hearing, the court heard from three medical witnesses, all of whom had provided reports that they adopted as part of their evidence. The HSE called Dr Emmanuel Umama- Agada, and Dr Atiqa Rafiq. The guardian ad litem called Dr Sarah O’Dwyer. 19. Dr O’Dwyer had provided two reports, in July 2025 and February 2026. Dr O’Dwyer framed her views on capacity in the context of a very detailed consideration of the respondent’s history and a new formulation of her presenting conditions; and she was of the opinion that the respondent required assistance to make decisions and lacked capacity to make decisions on her residence and complex financial matters on her own. Dr Rafiq had provided a report in October 2025. Dr Rafiq explained that she had been persuaded by the report that Dr O’Dwyer had prepared in February 2026, and effectively she agreed with Dr O’Dwyer’s opinion on the proper formulation of respondent’s condition and the issue of capacity. On the other hand, Dr Umama-Agada had only been asked to consider the issue of capacity and had not been asked to consider the underlying formulation. He was of the opinion that the respondent had capacity to make decisions on her residence and finances. 20. In light of Dr Umama-Agada’s opinion, the HSE’s stance at the hearing was that if the court accepted his evidence, then the threshold for maintaining orders under the inherent jurisdiction had not been reached and the orders should be discharged. The guardian ad litem position was that the court should prefer the evidence of Drs. Rafiq and O’Dwyer, which was that the respondent continued to lack capacity. If the court preferred that evidence, the guardian ad litem submitted that the existing orders should be continued for a short period to allow the respondent to avail of a transfer to step-down facility that had been identified and made available by the HSE. 21. For the reasons that I will explain briefly, the court found the evidence from Dr O’Dwyer and Dr Raqfiq more persuasive. However, that is not to be taken as any criticism of Dr Umama-Agada. Dr Umama-Agada 22. Throughout the proceedings from 2024, the court has had reports from a large number of doctors. Due to the unavailability of some witnesses who previously had provided reports on behalf of the HSE, the HSE arranged for the respondent to be examined at short notice by Dr Umama-Agada. Dr Umama-Agada is a consultant psychiatrist and acting Executive Clinical Director of a regional Mental Health Service, and very well qualified and positioned to make a capacity assessment. 23. Dr Umama-Agada met the respondent on the 10 March 2026, having considered her history as explained in the papers and reports. The areas explored by Dr Umama-Agada with the respondent were her general welfare, finances, health care needs and residence. As part of his capacity assessment, the doctor discussed care pathway options with the respondent. The options were remaining in the nursing home, returning home with support, and accessing a step-down facility that had been identified. The respondent expressed preference for the option of a step-down facility. 24. Dr Umama-Agada noted that during the assessment there was no obvious evidence of memory difficulties and on a quick mini-mental state examination the respondent scored 27 out of 30. The doctor noted that the respondent acknowledged that she may have experienced a breakdown in the past, which he described as depression with anxiety symptoms and that she may have had difficulties with her memory. 25. Dr Umama-Agada was clear that on his examination and assessment there was no evidence that the respondent presented with symptoms consistent with a relapse of a major mental illness. He noted, however, the complexity of her presentation over the years. Dr Umama-Agada explained his process in assessing capacity. The doctor was satisfied that he had identified the main issues in respect of which decisions had to be made, and was satisfied that the respondent was able to understand, retain and discuss the relevant information. 26. In terms of any issue that could arise if the respondent was to return home, Dr Umama- Agada recorded the respondent as explaining that she knew that she ought to ring an ambulance if there was an emergency and contact her GP if she was unwell. She also knew that she could seek support and advice if she had any difficulties with her family. Insofar as it was recorded that the respondent had considered the possibility of a difficulty with her family she had observed that they had “their own lives as well.”. Dr Umama-Agada also noted that the respondent was able to understand, retain and weigh information regarding her finances. The doctor gave the following overall conclusion: “[The respondent] is well able to understand the rationale behind being placed in a nursing home and the rationale for going home and she also understands the possible problems that could arise if she stayed in the nursing home versus if she went home she was well able to retain the information long enough to use it to weigh her options to arrive at a decision and she was able to communicate her decision to me.” 27. Dr Umama-Agada explained that the HSE had identified a step down placement for the respondent. This facility is operated under the supervision of a consultant in rehabilitation medicine and benefits from a full multi-disciplinary team with 24 hour nursing support. If the respondent was transferred to the unit she would be able to come and go as she pleased and would be provided with assistance for daily living tasks and medication. She would be subject to an individual care plan. The facility is located close to where the respondent lived. Importantly the facility is not a secure or locked facility; accordingly, the respondent could not be detained in that facility. However, the guardian ad litem had suggested and the HSE was willing to proceed on the basis that if orders were to be made they would incorporate a power given to An Garda Siochána to search for and return the respondent if she was absent without leave. 28. In cross examination, counsel for the guardian ad litem put a number of matters raised by Dr O’Dwyer to Dr Umama-Agada. The focus of cross examination was on the element in the capacity test that focussed on the ability of the person concerned to weigh the information in a way that allowed her to appraise the risks and benefits of the choice involved. Dr Umama Agada stated that he had assessed the respondent over the course of an hour, and he was familiar with her medical and social history. 29. It was put to Dr Umama-Agada that in this case it was necessary to explore very closely the respondent’s understanding of the risks associated with returning home and her ability to weigh those risks against her strongly held consistent desire to return home. Dr Umama-Agada accepted that he had not addressed those risks directly, but that he had explored the issue in a general sense. He noted that the respondent had acknowledged that she had not managed well at home in the past, and was aware of the need to seek out support if problems re-emerged. There was no specific discussion of safeguarding issues relating to her daughter’s partner. Dr Umama-Agada was frank that he was not aware that, although the respondent believed and stated that she had been told by her daughter that the daughter was working to bring about her discharge from the nursing home, the daughter had made clear to the HSE and others that she was reluctant for the respondent to return home. 30. Dr Umama-Agada was concerned to draw a clear distinction between the ability to make a decision in the first place and the question of whether the decision made was wise or unwise. There was no dispute in relation to this point, the law is clear that once a person has capacity, the decision that they make is a matter for them. 31. It was put to Dr Umama-Agada that when Dr O’Dwyer had raised the issue of her daughter’s apparent opposition to the respondent returning home it had evoked a very strong negative reaction from the respondent and the respondent appeared unable to contemplate that this could be so. This was described as a function of a pathological fear of abandonment by family members, such that the respondent was unable to appraise all the relevant information relating to a return to her family home. In effect, as a result of her overall trauma experience the respondent could not critically weigh information of this type. Dr Umama-Agada responded that in his view the respondent was not someone whose decisions were influenced by her fears. 32. In relation to financial decisions Dr Umama-Agada was aware of the history of financial difficulties but was satisfied that the respondent was able to make financial decisions. While she may have had difficulties in the past when she was unwell, her current mental state meant that she was able to navigate financial decisions. Dr Atiqa Rafiq 33. Dr Rafiq is a consultant old age psychiatrist and clinical lead in the Mental Health Services for Older People in a northeastern county and is part of the Memory Clinic in the same county. Dr Rafiq had prepared a report in October 2025. As noted in the introductory paragraphs to her report, the case “presents a diagnostically complex clinical picture”. Dr Rafiq noted that the position was difficult because the accounts given by the respondent of her history had differed over time, and that this may be a function of her level of distress at the time. 34. In terms of the respondent’s history Dr Rafiq noted that the respondent had had a difficult family upbringing and had experienced difficult relationships as an adult. She also had experienced considerable difficulties financially, with Dr Rafiq noting that she “never seemed to have developed the ability and skills to manage her financial affairs.” 35. Dr Rafiq noted that between 2021 and 2023, when the respondent presented to the department of psychiatry, she did not display any organisation. When Dr Rafiq interviewed the respondent in October 2025, the respondent believed that she was fully capable of living independently at home. Dr Rafiq got the impression that the respondent was not fully aware of the situation at her home, and she did not mention her daughter’s partner. The respondent could not explain why she was admitted to the nursing home, and, in relation to her earlier hospital admissions, was unable to show “any knowledge or understanding of reasons for her admissions or how her condition changed or if it didn’t. Her answers were superficial and focused on the desire to ger home.” 36. Dr Rafiq noted that there was evidence of improvement in her cognitive functions when comparing the results of tests that were conducted with an assessment carried out by her Memory Clinic in December 2021. It was noted that the respondent had no difficulty understanding the information presented to her or with retaining that information. Dr Rafiq’s clinical impression was that the respondent did not have dementia or a neurodegenerative condition. She formulated a provisional diagnosis of a dissociative disorder placed in the context of lifelong skills deficits and severe stress and trauma. As put by Dr Rafiq, “in periods of stress, she seems to become detached from reality. These responses have become deeply ingrained and chronic over the last 4 to 5 years. Living independently is likely to be very challenging and stressful for her and she will need supports in the area of cooking, cleaning, transport, shopping, medication and financial management.” 37. When she came to give evidence, Dr Rafiq said that she had closely considered the February 2026 report prepared by Dr O’Dwyer and agreed with Dr O’Dwyer’s reasoning. Dr Rafiq gave very compelling evidence of the importance of a detailed functional capacity assessment, stating that one had to consider a person’s understanding of all the facts that related to a decision, taking into account the person’s baseline ability, the potential consequences of the decision, and the person’s insight into those matters. In this case, Dr Rafiq understood the basis for Dr Umama-Agada’s views, and agreed that capacity to make a decision was separate from the wisdom of a decision; however, she appeared to consider that there should have been a more detailed consideration of the decision making process in the context of the history of the respondent’s difficulties. Dr Sarah O’Dwyer 38. Dr O’Dwyer is a dual accredited Consultant Psychiatrist in General Adult Psychiatry and Psychiatry of Later Life. She practices in St. Patrick’s University Hospital, Dublin and is the clinical lead for the Special Care Unit in the hospital. She is a Senior Clinical Lecturer in Trinity College Dublin. Dr O’Dwyer first visited the respondent in June 2025, and her first report is dated the 10 July 2025. 39. In her first report, Dr O’Dwyer explained her understanding that one of the respondent's daughters had returned to live with her mother in 2020, after which the respondent developed a dependence on her daughter. That daughter’s partner moved into the respondent’s home in 2022, and collateral information indicated that both have a history of addiction issues. The respondent is the named tenant in the property and rent has been paid by her, without financial support from the other occupants, at all material times. In addition to the respondent’s medical and behavioural difficulties, Dr O'Dwyer understood that there were ongoing concerns regarding the daughter’s partner’s controlling and threatening behaviours, albeit that the respondent's daughter had denied the allegations. 40. Dr O’Dwyer described the respondent’s medical and psychiatric history and presentations over the years, including the diagnosis from 2023 of bvFTD. Dr O’Dwyer highlighted established concerns regarding the respondent being a victim of both emotional and physical abuse in her home. At that point in time, Dr O’Dwyer considered that the respondent required supervision to ensure that she was not at risk of misadventure and that a return to full independent living in the absence of adequate safeguards would expose her to potential risks, including potential self-neglect and vulnerability to exploitation or harm at home. However, she considered that the nursing home placement did not meet her needs at that time, and less restrictive interventions should be trialled. 41. The second report was based on the examination carried out in late January 2026 and the report was dated the 16 February 2026. The report is very detailed and thorough. Dr O’Dwyer noted the diagnostic ambiguity and conflicting professional opinions regarding the respondent’s capacity. In particular, the report highlighted the then developing view that the respondent did not have a neurodegenerative disease. Ultimately, Dr O’Dwyer was of the view that the respondent did not suffer from dementia. 42. It is apparent from the report that Dr O’Dwyer carried out an extensive interview with the respondent. The interview considered the respondent’s life history and her family relationships. The respondent provided a narrative of pervasive domestic violence and abuse in her relationship with her first partner, which gave rise to self-harm and suicidal ideation. Her relationship with her second partner was not physically abusive, but involved consistent infidelity by her partner. Dr O’Dwyer noted that during this part of the conversation the respondent began to pause and stare vacantly out of a window and appeared to be in some form of dissociative state. The respondent acknowledged some of the difficulties that led to her being placed in the nursing home in May 2024. However, the respondent appeared to be unable to recall certain of the reported behaviours. The respondent appeared upset by references to her daughter’s partner, and stated “I need to get him out, get him lifted.” 43. Dr O’Dwyer attempted to assess the respondent’s capacity to understand and appreciate the risks associated with returning to live with her daughter, and potentially her daughter's partner. When Dr O’Dwyer introduced the possibility that the respondent’s daughter was not supportive of the proposition that the respondent return home, the respondent became very distressed and agitated. 44. Dr O’Dwyer believed it was important for the respondent to have a clear and transparent appraisal of the factors that resulted in her placement in the nursing home, and for it to be explained to her that her current situation was the result of an accumulation of events and risk factors that had unfolded since 2020. The respondent identified stressors that she had experienced, including financial debt and the death of the son of a friend of hers. 45. In her report summary, Dr O’Dwyer described the respondent’s presentation as “highly complex, with multiple interacting factors across her symptom profile, risk indicators, and functional capacity.” She stated that “each of these domains exerts a directional influence on the others, creating a dynamic pattern in which her risks, coping abilities, and day-to-day functioning are closely interlinked.” Dr O’Dwyer considered it appropriate to view the respondent’s presentation through a trauma-informed lens which, she stated, allowed for a more nuanced appreciation of the origins and maintenance of her difficulties and provided a coherent framework within which her psychiatric diagnosis could be understood and contextualised. 46. Dr O’Dwyer highlighted the respondent’s repeated exposure to trauma and significant stressors throughout her life, and that the entry of an allegedly abusive male figure into her life and into her home about whom she had fears and concerns likely triggered a substantial trauma response given the established history of domestic violence. In turn, this acted as “both a precipitating and perpetuating factor in her subsequent chaotic presentation, as her psychological distress intensified in response to perceived threat and loss of safety within our own environment.” Viewed in that way, Dr O’Dwyer saw her repeated presentations to the emergency department as maladaptive help seeking behaviours. 47. Dr O’Dwyer was of the opinion that the respondent “did not possess the emotional skill set, psychological language, or mentalising capacity required to reflect on, understand, or articulate how her internal psychological state was driving her behaviour during this period.”. It was noted that the respondent continues to demonstrate limited capacity for reflective practise and reduced ability to mentalise, which significantly constrained her insight and her ability to regulate her responses under stress. Those limitations potentially placed the respondent at an elevated risk of future decompensation if she was exposed once again to perceived threats or destabilising stressors. 48. Dr O’Dwyer was of the opinion that the respondent presented with “Disturbance of Self Organisation (DSO)”, which is an ICD-11 term to describe “deep, pervasive psychological changes that occur after prolonged, repeated, or interpersonal trauma.” The main features or clinical domains of DSO include affective dysregulation, negative self-concept and disturbance in relationships. Dr O’Dwyer noted that the respondent’s symptoms fluctuate in response to perceived relational threat rather than reflecting a stable personality structure or disorder. 49. In terms of capacity, regarding the question of future accommodation Dr O’Dwyer believed that the respondent could only make an informed decision regarding her future accommodation with the assistance and support of a co-decision maker. She believed the respondent had capacity to manage her day-to-day finances independently, but would require the support of a co-decision maker for more complex financial tasks. 50. Dr O’Dwyer’s views were explored in examination and cross examination. The doctor explained that a re-exposure to potential perceived stressors could lead to a deterioration in the respondent’s mental health. Dr O’Dwyer focused on the respondent’s ability to engage in discussion about what might occur when she returns home, and, in particular, the role that her daughter and her daughter's partner would play in that situation. 51. Dr O’Dwyer explained that her concern was not about the wisdom of the decision to return home but the process that led to the decision. In that regard, the respondent could understand and retain information, and communicate a decision, but a difficulty arose in the context of her ability to weigh information. The respondent was unable to make a properly informed decision about returning home because she was unable to contemplate that she may not be welcomed by her daughter. My understanding of the evidence was that it was not simply that the respondent found that potential scenario distressing or uncomfortable, but rather that her pathological fear of abandonment by, and her dependence on her daughter meant that she was simply unable to include the alternative possibility as part of her decision-making process. ANALYSIS AND DECISION 52. Certain elements of the evidence in this case are not disputed. The respondent has a very unfortunate history of difficulties in her relationships. She had very unfortunate family relationships when she was growing up. She experienced serious emotional and physical abuse in her first significant personal relationship and serious emotional abuse in her second. The respondent seemed to have missed out on developing many life skills, including the skills required to make complex financial decisions. 53. More recently, the respondent experienced a form of mental health crisis over the period 2020 to 2023, which resulted in her presenting at her local department of psychiatry and emergency departments on multiple occasions. At the same time, very serious concerns were expressed about her presentation, behaviours and ability to care for herself safely and properly. 54. When the initial applications were made for orders placing her in the nursing home there was compelling objective medical evidence that she was suffering from a neurodegenerative disorder, bvFTD. It is now apparent that the respondent does not suffer from dementia. However, it is necessary to attempt to understand what gave rise to her complex difficulties if dementia is removed as a cause, as it must be. 55. It is true to observe that, to trigger the application of the inherent jurisdiction, the court does not need to be provided with a precise diagnosis so long as there is compelling evidence that a respondent lacks capacity. However, I consider that, in this application, the consideration of the respondent’s capacity to make a decision about her residence, and, specifically whether or not to return home, requires some consideration of what gave rise to the very serious difficulties that precipitated her placement in the first place, and to consider whether the respondent has the ability to understand those factors. This is particularly the case where the evidence supports the proposition that the respondent believes that her daughter wants her to return home, when this likely is not the case and that the daughter’s partner remains in the home. 56. In that regard, I accept the evidence from Dr O’Dwyer, supported by Dr Rafiq, that on the basis of the current state of evidence, the respondent likely suffers from Disturbance of Self Organisation and that her difficulties must be viewed against the backdrop of her history of trauma. This leads to the primary reason why I prefer the evidence of Dr O’Dwyer and Dr Rafiq on the issue of capacity. Both doctors emphasised that the analysis of the respondent’s process of decision-making had to take account of her overall mental state. 57. It must be highlighted that a difficulty with the application was that the precise position of the respondent’s daughter was not put in evidence. That is problematic, but it does not prevent a decision being made. First, a decision has to be made, and in many cases the court will not have access to all the evidence that it might prefer to have. Second, and more importantly, in this case the issue is not whether as a matter of concrete fact the respondent’s daughter wants her to return to home. The issue is whether – as a result of her various identified difficulties and as part of the process of considering that a return home might risk a relapse in her symptoms – the respondent has the ability to factor into her decision-making and weigh the possibility that her daughter does not want her to return, and that if she returns there will continue to be difficulties presented by her daughter’s partner. 58. On balance, but acknowledging some lack of clarity in the underlying evidence, there is a strong basis for suggesting that a significant factor in the respondent’s acute deterioration in 2021 to 2023 was her exposure to difficulties in her home associated with her daughter’s partner. The evidence was (a) that the respondent was highly dependent on that daughter (the dependence was described in evidence as “pathological”), and (b) that the introduction of a threatening presence in her home triggered a serious deleterious response. The ongoing impact of those matters was demonstrated to Dr O’Dwyer by the clinically significant agitated and distressed responses provoked by attempting to discuss these matters with the respondent. 59. I accept Dr O’Dwyer’s evidence that, due to her underlying conditions, the respondent is unable to contemplate or factor into her decision making the possibility that her daughter is anything other than supportive of her return. This means that in attempting to make a decision the respondent cannot weigh the risks and benefits in the balance. If the respondent is not able to contemplate that scenario and has not developed an insight into her own psychiatric and psychological difficulties this suggests a substantial disruption to her decision-making ability. 60. This is not the same as the clinicians or the court finding the respondent lacks capacity because they disagree with the decision made by the respondent. If the respondent had full capacity, it would of course be open to her if she wished, with the assistance of the various authorities, to take steps to ensure that she was safe in her own home even if that involved conflict and disruption to her relationship with her daughter. The difficulty is that the respondent is so dependent on her daughter and fixed in her belief that her daughter wants her to return that she is unable to contemplate the alternative (and likely more realistic) scenario. 61. In addition to considering that Dr O’Dwyer and Dr Rafiq have engaged in a deeper and more considered analysis of the respondent’s decision-making capacity than Dr Umama- Agada, I have also taken account of the fact that they are clinicians who have had the opportunity to spend more time with the respondent and to consider the relevant complex history. As stated at the outset this is no criticism of Dr Umama-Agada, who was asked at very short notice to carry out his tasks, and who of necessity had a more limited opportunity to consider the situation. 62. I am also persuaded by the evidence of Dr O’Dwyer that the respondent at present lacks capacity to make major or complex financial decisions. The evidence in that regard was not as strong as the evidence in relation to place of residence. Nevertheless the court accepts that whether this due to her underlying conditions or a simple lack of skills, or a combination of both, the respondent requires to be protected against poor financial decision making and potential exploitation. 63. In the premises, the court will continue the orders that are in place. However, this will be for a short period and for the sole purpose of permitting the HSE to put in place the proposed transfer to the identified step-down placement. The availability of that placement is very welcome, given the concerns about the suitability of the current placement for the respondent. Once that transition has taken place, the court will need to consider the proper scope of any orders that may be applied at that stage. However, given the relative consensus at the hearing between the parties, it is likely that the orders will only extend to orders directing An Garda Siochána to search for and return the respondent to the step-down placement in the event that she does not return from outings as expected. In all other respects, the unit is an open unit, and a necessary part of the respondent’s program will be the ability to come and go. However, I want to hear from the parties about the precise form of the orders that will be made, and, in particular, there will need to be clarity and precision in identifying the triggers for the exercise of any Garda powers to return the respondent to her placement. 64. The period in step-down should allow for a more detailed consideration of whether and how the respondent can be facilitated in her wish to return home. Moreover, the court is acutely aware that if there is no ongoing need for detention then decision making for the respondent should be capable of being addressed by reference to the provisions of the Assisted Decision Making (Capacity) Act 2015, and the need for relief by reference to the inherent jurisdiction of this court will cease. I propose to hear further from the parties in relation to all of those matters on the next scheduled review date.