Jurisdiction
Circuit Court has exclusive jurisdiction subject to limited exceptions
Section 4(1) of the 2015 Act, as amended, provides that the Circuit Court shall have exclusive jurisdiction under the Act “subject to subsection (3), sections 37, 85(6)(b), 89(2), Parts 6, 10 and 11″.
Taking each of these provisions in turn:
Subsection (3) provides that “(a) any decision regarding the donation of an organ from a living donor shall, where the donor is a person who lacks capacity, be determined by the High Court, and (b) where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.”
Section 37 provides that the Circuit Court may not make a declaration as to the lawfulness of a proposed intervention where the intervener is the Circuit Court or the High Court, or where the intervention is being taken pursuant to an order made, or a direction given, under the Act by the Circuit Court or High Court.
Section 85(6) was deleted by Section 74 of the 2022 Amendment Act.
Section 89(2) mandates that a declaration in relation to an Advance Healthcare Directive, where the application involves consideration relating to life-sustaining treatment, be made by the High Court.
Part 6 deals with Wards of Court.
Part 10 deals with detention orders and review of detention orders under the Mental Health Act 2011.
Part 11 deals with the Convention on the International Protection of Adults.
Inherent jurisdiction of High Court confirmed
Section 4(5) of the 2015 Act (as inserted by Section 5 of the 2022 Amendment Act) provides that “Nothing 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.”
Venue
[In summary: Venue is virtually always decided by reference to the place of residence/business of the person about whom decisions are being made.]
As per Section 4(2) of the 2015 Act (as amended by Section 5 of the 2022 Act), the appropriate Circuit Court venue is to be selected by reference to the Circuit “in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:
(a) the relevant person (including a ward) the subject of an application under this Act;
(b) in the case of proceedings under section 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;
(c) in the case of proceedings under Part 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;
(d) in the case of proceedings under section 46 or 47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned;
(e) in the case of proceedings under Part 7—
(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or
(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996,
is the subject of an application or appeal under that Part;
(f) in the case of proceedings under section 88 or 89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;
(g) in the case of proceedings under section 125 or 127, the adult the subject of the measure that is the subject of an application under the section concerned.”
Last Updated: 2 March 2023