JudgeMr. Justice Kelly
Judgment Date18 March 2016
Neutral Citation[2016] IEHC 214
CourtHigh Court
Docket Number[2016 No. WOC 8554]
Date18 March 2016

[2016] IEHC 214



Kelly P.

[2016 No. WOC 8554]


Health – The support and advocacy service – Wardship – Inability to manage state of affairs – Unsoundness of mind – Conflict of evidence

Facts: The support and advocacy service (SAGE) had filed the present application for admitting its client, M.B., into wardship. SAGE contended that M.B. being a 90-year old lady, who was suffering from Alzheimer's-type dementia, should be admitted to wardship contrary to her wishes as she was not capable of managing her own affairs as evidenced by the medical experts though containing contradictory views.

Mr. Justice Kelly P. granted an order for admitting M.B. into wardship and appointed General Solicitor for Wards of Court as her committee. The Court held that given the nature of medical ailment M.B. was suffering and expert testimonies, it was evident that M.B. was not capable of taking her own care and thus, she was in dire need of long-term medical care. The Court took into account the evidence presented by the medical expert possessing vast expertise in the concerned area and holding regular interaction with M.B. as opposed to the medical expert with comparatively less experience in dealing with patients having dementia.

Extempore JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 18th day of March, 2016

On the 27th August, 2015 E.F. presented a petition to the then President of the High Court. The petition recited as follows:-

‘1. M.B. the respondent is 91 years old, and is a retired pub owner. She was married and her husband predeceased her. She previously resided at/in Co. W. She currently resides at – General Hospital.

2. She came under the care of the Health Service Executive in July 2014.

3. She suffers from Alzheimer's type dementia. Her mental mini-score examination is 9/30. She has no understanding of the risks and benefits associated with her treatment and the pros and cons of residential care placement. She has, at the petitioner's instance, been examined by two registered medical practitioners, whose affidavits deposing to her present medical condition are filed herewith.

4. The names, addresses, descriptions and religion of her next of kin are as follows (details included).

5. Her property, the total estimated approximate value of which is €76,147.99 is as follows:

a) Bank account €1,147.99

b) Property containing a derelict residence and licensed premises with an estimated value of €75,000 in the respondent's own name.

Her total estimated income is approximately €130 per week consisting of a pension.’


The petition was supported by two affidavits each of which was sworn by a registered medical practitioner. One was that of Dr. Ogo Chukwjama, a Registrar in Old Age Psychiatry. In his affidavit the doctor recorded that M.B. was admitted to hospital due to an inability to cope at home and with a history of falls and general deterioration of her health. He set out her background physical history which included hiatus hernia, oesophagus stricture and recurrent foot ulcers. He recorded that M.B. acknowledged the plans for long term care but was adamant that she wanted to go home. She did not understand the need for the plan and insisted that she would be able to look after, both herself and her sister, at home. Whilst in hospital she had been receiving full time care but became agitated when contemplating the enormity and complexity of day to day activities such as bathing and preparing meals. She is doubly incontinent. He pointed out that she did not understand the risks involved in her living alone and unsupervised, and expressed his view that she was unable to look after her own affairs, both in the day to day management of her care and the management of her financial affairs. He said that she was of unsound mind and does not have the mental capacity to manage her affairs.


The second affidavit was sworn by Dr. Obada Yousif who is a Consultant Physician. He reported having assessed her and diagnosed her as suffering from Alzheimer's type dementia. Her mini-mental score examination was 9/30. He expressed the view that her condition was a progressive one and that her mental functions will continue to deteriorate with time. He recorded that she is unable to register information and unable to maintain concentration. He also expressed the view that she is of unsound mind and is unable to manage her own affairs.


On the 25th September, 2015, Kearns P. ordered an inquiry to be had as to the soundness or unsoundness of mind of M.B. Following the making of that order Dr. Niall J. Gormley, M.D., M.R.C.P.I., M.R.C. Psych. was appointed medical visitor to examine and report on M.B. Dr. Gormley is a Consultant Psychiatrist specialising in Old Age Psychiatry. He prepared a report which was furnished to the Registrar of Wards of Court on the 19th October, 2015. He carried out his assessment of M.B. in the hospital on the 9th October, 2015. His report records that the nursing staff informed him that she required assistance with activities of daily living and was doubly incontinent. At the time of his assessment she was lying in bed. She appeared calm and established reasonably good rapport. She was unable to describe the circumstances of her admission and felt that her doctor had sent her into hospital for a ‘build up’. She was unable to tell him what was planned for her future but stated that she wished to go home. She felt that she would not need additional help at home as her sister would look after her. She was aware that her sister was at that stage in a nursing home but she appeared to believe that her sister was employed there rather than a long term resident. When Dr. Gormley asked her what would happen if her sister was unable to return home, she replied that she would not like to think about that situation. M.B. believed that she could wash and dress independently. She acknowledged that she was unable to mobilise but told him that she could creep along the ground at home if necessary. She knew she was in hospital and the current day and month but not the date or year. There were deficits in her short term memory. The doctor concluded as follows.

‘In summary, M.B. is a 91 year old lady who has been an inpatient in – Hospital for the past 15 months. Based on the recent assessment of her and a comparison of the early stages of her admission in some respects her mental state and cognitive function have improved. Despite this improvement, her current presentation is consistent with dementia. As part of the dementia process, M.B. has significant impairment in her insight and judgment. She does not have an awareness of the level of her disability, and her need for assistance in her activities of daily living. She has an unrealistic expectation that her sister will return from a nursing home to look after her at home.

Although M.B. has stated that she wishes to return home, I feel she would be very vulnerable if she was discharged to her own home and it would be very difficult to meet her needs considering her level of disability. M.B. does not have an understanding of her day to day financial affairs. She is being well cared for in – hospital but in the future she will require long term care in a nursing home or geriatric hospital.

In my opinion, M.B. is of unsound mind and unable to manage her affairs.’


In early January 2016 an organisation called SAGE became involved in this matter. On the 7th January, 2016 it wrote to me through Mary Condell, a solicitor, in the following terms:-

‘Dear Judge Kelly,

SAGE – the support and advocacy service for older people has its origins in the response of the HSE to the Leas Cross Nursing Home scandal in 2005. It is now being developed under the governance of Third Age Ireland, with funding from the HSE and Atlantic Philanthropies. It is guided by a national advisory committee chaired by former Law Reform Commissioner, Patricia Rickard-Clarke. Sage is working to expand access to support and advocacy services in all care settings and is committed to addressing individual and systemic issues and to the promotion of quality standards for support and advocacy work with older people. Our mission is “to promote and protect the rights, freedoms and dignity of older people by developing support and advocacy services wherever aging poses a challenge for individuals”.

In this context we write regarding a wardship application in respect of M.B. which is grounded, we understand, on an affidavit of her cousin E.F. and medical assessments of M.B.'s capacity carried out some months ago.

Sage were asked to become...

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