The anomaly — thought to involve 25,000 nursing home residents and thousands more in other residential settings — came to light during preparations for the implementation of new laws giving people with restricted decision-making capacity more say in their care.

A new State agency, the Decision Support Service (DSS), is being set up to oversee the Assisted Decision-Making (Capacity) Act, which appoints formal decision-makers or decision-making assistants to adults whose capacity to make decisions is diminished by mental or physical illness or disability.

Under the act, 2,800 wards of court will have to have their cases reviewed, while people entering care for the first time will have a more robust examination of their own wishes. However, one of the issues the act has thrown up is the status of adults already in residential care who have not given express consent to be there.

Newly-appointed head of the DSS, Áine Flynn, said Deprivation Of Liberty Safeguards (DOLS) would be added to the act for those entering care but they would also have to be applied retrospectively.

Newly-appointed head of the Decision Support Service Áine Flynn

“We have the question of what do you do with somebody who has no capacity as defined by this act, but is de facto in a situation where their liberty is denied them? That’s a big cohort of people,” she said.

“You’re thinking about people in a nursing home, or in an approved [mental health] centre, or in a range of other facilities. Effectively they are being contained. They are subject to constant supervision and their movements are curtailed, so they don’t have their liberty and they are not consenting to that arrangement. What safeguards are there around that? Who is monitoring that? Who has given their approval to that deprivation of liberty? It’s not provided for in law.

“Something like 80% of the nursing home population would have capacity issues because they would be dementia sufferers and in a great many cases, steps need to be taken to safeguard them and therefore doors are locked and movements are restricted. But who says it’s alright to lock that door? That’s what’s going to be regulated.”

That will mean thousands of applications to the courts to either approve or amend arrangements already in place and to appoint decision-makers for the future, or else the setting up of specialist tribunals to review each case, although currently the thinking is that tribunals could be a more costly option.

The Department of Health is seeking submissions from the public and interested groups by next March.

The act has implications far beyond nursing homes. When fully commenced, it will end the ad-hoc arrangements put in place by many families making decisions for loved ones and it will require healthcare, legal, financial, and other professionals to satisfy themselves that a client or customer has full capacity to make decisions and to call in the DSS where that capacity is in doubt.

The act also gives legal status to advance healthcare directives for the first time so that decisions around life-prolonging measures in the event of illness or accident can be made in advance and must be honoured by medics and families, whether or not it is perceived to be in the best interests of a loved one.

Ms Flynn said the law required a change in mindset by families, carers, and professionals but she believed it would be seen as championing human rights.

“That’s not to say that there isn’t some reticence, which I hope doesn’t go as far as hostility because it’s new,” she said.