Background
On 8 December 2023 the Circuit Court (O’Connor J.) delivered an anonymised decision appointing a panel-DMR against the wishes of the Relevant Person’s family members.
Conflict of Interest
“Having carefully considered the factors outlined in section 38(5) of the Act, the court is of the view that whilst the siblings are devoted to their sister, they lack insight into the issues resulting in a conflict of interest. In the Court’s view the family cannot objectively deal with financial, medical and care decisions on behalf of their sister.
The Court has come to the conclusion that there is a lack of transparency and accountability in the presentation of the Relevant Person’s assets. The Court has a duty to ensure that the financial rights and freedoms of persons who have limited capacity such as the Relevant Person are protected against any perceived financial abuse. The Law Reform Commission in its issue paper entitled ‘A Regulatory Framework for Adult Safeguarding’ has comprehensively heightened many of the issues that can arise in these circumstances.
While the Court acknowledges that the Relevant Person’s individual family members have a strong belief that they are acting out of a genuine caring disposition and in good faith, there is regrettably too many issues outlined to the Court that give rise to a serious conflict of interest for the Doe family unit.
The court does not come to this conclusion lightly because the court would like the family to continue to be involved in the Relevant Person’s life.“
Financial Affairs
“However, as an example of the conflict, Mr. John Doe lives in the Relevant Person’s house. In relation to the apartment, it is unclear as to what the arrangements are or if there is any agreement in place. There was no evidence of any written agreement furnished to court. Despite the fact that Mr. John Doe looked after her financial affairs for a number of years, no accounts were furnished to the court. In addition, he resides in the dwelling house. The use of the apartment is unclear. At least one holiday was taken which Mr. James Doe benefitted from and there is a financial payment of €25 per week to Mr. James Doe. This creates issues that need to be resolved by an independent decision-making representative.
The court is of the view that despite good intentions Ms. Joy Doe and Ms. June Doe do not have the financial expertise to deal with complex financial matters. In addition, it has to be borne in mind that, this is a family that have acted as a unit collectively when in fact the Relevant Person’s assets should have been solely for her benefit. In summary the Court’s view is there are just too many conflicts for family members to deal with financial matters.“
Medical Care Decisions
“In relation to medical care decisions, this court has power to deal with medical care decisions but not deprivation of liberty. With regard to medical care decisions, the sad fact is that members of the family instead of acting as advocates, which would have been admirable, have effectively overreached. They put themselves into a position without expert knowledge acting as the Relevant Person’s decision-makers for medical decisions. This would make it impossible for medical professionals to objectively treat the Relevant Person. Their subjective views are not backed up by any objective analysis.
In relation to the care situation, the Court is of the view that the Relevant Person’s needs are very complex and that the draft plan produced by the family is not realistic bearing in mind the very high supports that the Relevant Person now needs.”
Decision
“In these circumstances and for the reasons outlined, it is the Court’s view that an independent DMR be appointed from the panel to make financial decisions, to make medical treatment decisions and to make decisions regarding the Relevant Person’s long-term care and accommodation.”
The full judgment, entitled Joan Doe -v- HSE & John Doe, can be read here.