Health Service Executive v MM (A Person Lacking Capacity Not So Found Represented by Her Guardian Ad Litem) and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Dignam
• Judgment Date: 22 July 2026
• Neutral Citation: [2026] IEHC 498
• Docket Number: [Record No. 2026 36 MCA]

Between

Health Service Executive

Applicant

and

MM (A Person Lacking Capacity not so Found Represented by her Guardian Ad Litem)

Respondent

Mental Health Commission

Notice Party

[2026] IEHC 498

[Record No. 2026 36 MCA]

THE HIGH COURT

Advance healthcare directive – Capacity – Jurisdiction – Applicant seeking a declaration that an advance healthcare directive was not valid – Whether the respondent had capacity to make the advance healthcare directive at the time that she did so

Facts: The applicant, the Health Service Executive, applied to the High Court seeking: (1) a declaration that the respondent (Ms M) lacked capacity at the time of the hearing to make decisions concerning her immediate psychiatric treatment and related matters; (2) a declaration that the advance healthcare directive (AHD) made by Ms M was not valid; (3) in the event that the court found the AHD to be valid - (a) directions or declarations as to its applicability to the treatment of Ms M’s physical health conditions and (b) directions or declarations regarding Ms M’s continued detention in the hospital and as to the treatment, if any, that may be administered to her there; (4) further and/or in the alternative - (i) a declaration that Ms M was in need of an appropriate and continuous regime of clinical, medical, nursing and ancillary treatment in the hospital for the protection of her constitutional rights, including her right to bodily integrity and to life, (ii) an order permitting the medical and nursing staff of the hospital to carry out such medical, psychiatric and nursing and ancillary treatment of Ms M as they consider in the exercise of their clinical judgment to be necessary and appropriate in the best health and welfare interests of Ms M, including but not limited to (a) such medical treatment to Ms M as may be in her treating doctor or psychiatrist's opinion necessary for the purpose of securing her best medical treatment and welfare interests, including but not limited to the administration of medication, the extraction of blood for testing, diagnostic testing and any ancillary or associated treatment that Ms M’s treating doctors consider clinically appropriate, (b) reasonable force and/or restraint to be used in the course of the said care and medical procedures to the extent to which it may reasonably be necessary and in the best interests of Ms M, which said force and/or restraint is to be conducted by appropriate personnel trained in therapeutic management of aggression and violence, and (c) the use of minimum necessary amount of sedation, if required, in the course of such care and medical procedures which said sedation is to be administered by appropriately trained professionals as in their medical and/or clinical opinion they deem necessary in the best interests of Ms M in accordance with the requisite protocols, procedures and guidelines that apply.

Held by Dignam J that: (i) in the particular circumstances of the case when it came before him, the psychiatric medication was “life-sustaining treatment”; (ii) the court therefore had jurisdiction to hear and determine the application pursuant to s. 89(2) of the Assisted Decision-Making (Capacity) Act 2015 for a declaration that the AHD was not valid and/or was not applicable; (iii) lack of capacity to make an AHD on the part of a directive-maker is a ground upon which an AHD may be found to be invalid and upon which a declaration may be made pursuant to s. 89; and (iv) Ms M did not have capacity to make the AHD at the time that she did so.

Dignam J made a declaration pursuant to s. 89(2) that the AHD was not valid.

Application granted.

Judgment of Mr. Justice Dignam delivered on the 22 ^nd day of July 2026

TABLE OF CONTENTS

INTRODUCTION	2
Background	3
The advance healthcare directive	5
Relief sought	6
Issues arising	7
Post-hearing	8
APPLICABLE STATUTORY PROVISIONS	9
JURISDICTION	13
What is life-sustaining treatment?	13
The parties' positions on the meaning of “life-sustaining treatment”	13
Discussion	15
Is the psychiatric medication life-sustaining treatment in this case?	22
INTERLOCUTORY ORDERS	27
VALIDITY AND APPLICABILITY OF THE ADVANCE HEALTHCARE DIRECTIVE	28
Whether applicability should be decided	28
Invalidity on grounds of lack of capacity	29
Assessment of Capacity	32
TREATMENT FOR PHYSICAL HEALTH CONDITIONS	44
CONCLUSION	49

INTRODUCTION

1 . These proceedings are directly concerned with the validity and applicability of an advance healthcare directive executed by the respondent (“Ms. M”), with Ms. M's capacity at the time of the hearing to make decisions in relation to psychiatric treatment and treatment for physical health conditions, the HSE's authority to administer treatment for those physical health conditions, and the Court's jurisdiction to make Orders providing for the administration of treatment, including under restraint and/or sedation if necessary.

2 . The issues require detailed consideration of certain provisions of the Assisted Decision-Making (Capacity) Act, 2015 (the “2015 Act”). This Act has been described by Hogan J as “ the most fundamental change in the legal regime governing vulnerable persons in well-nigh 150 years” ( The Child and Family Agency v KK [2024] IECA 242). Among the many significant changes brought about by the 2015 Act was the introduction of provisions for binding advance healthcare directives (“AHD”) and these provisions form the focus of much of this judgment.

3 . Barniville P considered the provisions relating to advance healthcare directives in Governor of a Prison v XY [2023] IEHC 361. This was in a very different context and concerned different issues. To the best of my knowledge, the relevant provisions have not been the subject of any other written judgment. I am therefore very grateful to the parties for their very considered and helpful written and oral submissions. The issues, particularly those relating to the interpretation of those provisions of the 2015 Act, are novel and difficult. The submissions which were made, and the manner in which they were made, were extremely helpful.

4 . I made an order that the proceedings be heard otherwise than in public. I did so because section 92(7) of the 2015 Act provides that hearings under Part 8 of the Act shall be heard and determined otherwise than in public. Relief was also sought under the court's inherent jurisdiction which is not subject to section 92(7). It was not possible to entirely separate out the different reliefs. I therefore decided that the proceedings in their entirety should be heard in camera (see Governor of a Prison v XY). It is appropriate that I make this judgment public in circumstances where it involves some matters which are not covered by any in camera rule and some questions of broader public interest and application. I have taken steps to anonymise the judgment to remove any details which might tend to identify Ms. M. I did permit a bona fide member of the press to attend and report on the proceedings subject to certain conditions for the reasons set out in a ruling on the first day of the substantive hearing, the 20 ^th March 2026.

Background

5 . I propose to summarise the facts as briefly as possible to identify the issues. I will consider the facts and the evidence in greater detail later in the judgment when discussing the issues arising.

6 . Ms. M is a forty-five year old woman. She has a history of bi-polar disorder for which she required hospitalisation in 2006 and 2009. On the first of those occasions, she suffered a manic episode which entailed high mood, increasing activity levels, and disrupted sleep. This was treated with psychiatric medication during a three-month admission in hospital. Following discharge, she discontinued her psychiatric medication in 2008 and suffered a relapse of mania in 2009. She spent approximately three months in hospital on this occasion also.

7 . Ms. M reports that her mental health was stable for an extended period of time. On the 6 ^th January 2023, she presented for an assessment at Hospital A as a new patient. She had regular reviews since then. She was under the care of Dr. D or her team. It appears that during these reviews she informed the medical staff that she had reduced her psychiatric medication from the prescribed levels. This was contrary to medical advice. In May 2025, Ms. M told staff that she had reduced it further. Ms. M stopped taking her psychiatric medication at some point, but it is unclear precisely when she did so.

8 . On the 6 ^th November 2025, Ms. M executed an advance healthcare directive (provided for under section 84 of the 2015 Act), using the template provided by the Decision Support Service. I return to the terms of this AHD shortly, but for the moment it is relevant to note that Ms. M stated in the AHD that she did not want to receive any type of psychiatric medication. The validity and/or applicability of this AHD is at the core of these proceedings.

9 . On the 24 ^th December 2025, while she was on a Christmas visit to her parents, Ms. M called An Garda Síochána. An ambulance was called and she was brought and admitted to hospital (Hospital B) on an involuntary basis under the Mental Health Act 2001 (the “2001 Act”). On the admission order of that date, Ms. M's presentation was described as follows:

“[Ms. M] is acutely manic, displaying signs of mania e.g. elated mood, tangential thought form, grandiose delusions, irritable, difficult to interrupt. She doesn't have insight into her illness. Thinks she is in hospital because there is a communication error, believes everyone is very tired as they don't understand. She needs inpatient admission to administer essential treatment, which is likely to alleviate her symptoms: failure to do so will deteriorate...