- June 26, 2019
- Posted by: granitewordpress
- Category: News
A person over the age of 18 years may be taken into Wardship where the Court is satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs, and that it is necessary for the protection of his or her person or property that he or she be taken into Wardship.
The Wardship jurisdiction is evolving and expanding. This is due, in part, to a relaxation of the monetary jurisdiction threshold. Previous Presidents of the High Court could decline to take a person into Wardship where there were no assets to protect. This is no longer the case under the current President of the High Court, Mr Justice Peter Kelly and the Wardship jurisdiction is more widely available to vulnerable persons, who do not have any assets to protect.
On the 20th April 2018, the President of the High Court, Mr. Justice Kelly, delivered a Judgment in a case stated by the District Court, DPP v John Delaney.
The Judgment concerned two questions posed to the High Court by the District Court, namely:
- Is it possible for a Judge of the District Court to require the Registrar of Wards of Court to inquire into a matter, and to request the Registrar to direct a Medical Visitor to report to the High Court, regarding an individual’s capacity to manage himself or his affairs?
- Is it possible for a District Judge to bring a request by motion directly to the President of the High Court, requesting that the President use the power conferred upon the President by way of s.11 of the Lunacy Regulation (Ireland) Act 1871, to Order a Medical Visitor to visit a proposed Ward of Court, and present a medical report on the capacity or otherwise of a proposed Ward of Court, and thereby use the said medical report to stand as a petition for an inquiry into the capacity of an individual to manage himself and his affairs?
These two questions were raised in the context of the Accused appearing before the District Judge charged with 60 summary offences. The District Judge was concerned as to the capacity of the Accused to understand the charges he was facing. The District Judge formed an opinion that the Accused might be a person who lacked capacity to make his own decisions and he doubted if the Accused was in any position to give clear instructions to his solicitor.
In relation to the first question, the High Court noted that the jurisdiction in Wardship is to be exercised by the President of the High Court by virtue of s.9(1) of the Courts (Supplemental Provisions) Act 1961. The High Court stated that it was ‘clear that it is exclusively for the President of the High Court to direct one of the court’s medical visitors to visit and report on a person thought to be of unsound mind’. The jurisdiction is not conferred upon any other court or judge unless the President of the High Court assigns an ordinary judge of that court to exercise such functions.
It is therefore clear that a Judge of the District Court may not require the Registrar of Wards of Court to inquire into a matter nor indeed can the Registrar direct that a Medical Visitor so report.
In relation to the second question, the High Court stated that ‘there is no procedure available under which a District Judge may bring a request by motion directly to the President of the High Court’.
It was pointed out that it is open to a District Judge if he believes that a person is of unsound mind and unable to manage his affairs to write to the Registrar of Wards of Court to that effect. The letter should not merely state the District Judge’s belief in that regard but also the basis upon which is formed. The Registrar can then place that material before the President of the High Court and, if appropriate, he can exercise the jurisdiction conferred on him by s.11 of the 1871 Act.
This Judgment serves to clarify and reaffirm that, while the Wardship jurisdiction is wider than under previous Presidents of the High Court, it remains the exclusive jurisdiction of the President of the High Court.
ABOUT THE AUTHOR
Lebeau Jonker is a Partner with CKT and has considerable advocacy skills and regularly attends Courts of all levels.