A.B [A Respondent]

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 14 June 2024
• Neutral Citation: [2024] IEHC 361
• Court: High Court
• Docket Number: [WOC 958]

In the Matter of A.B. (A Respondent)

Respondent

[2024] IEHC 361

[WOC 958]

THE HIGH COURT

WARDS OF COURT

REDACTED

JUDGMENT ofMr. Justice David Barniville, President of the High Court, delivered on the 14th June, 2024

Index

1. Introduction	1
2. Factual and Procedural Background	2
3. Report of Prof. Casey	7
4. The Costs Dispute	8
1) Respondent's Position on Costs	8
2) HSE's Position on Costs	11
5. Analysis and Decision on Costs	14
1) Practice in Wardship Cases	17
2) Sections 168 and 169 of the 2015 Act and Order 99 RSC	24
3) Section 169(4) of 2015 Act and Order 26, Rule 1 RSC	26
4) Mootness	28
5) Undertaking: Order 67, Rule 4(2) RSC	30
6. Summary of Conclusions	32

1. Introduction

1 . This judgment addresses an interesting issue as to whether a respondent to a wardship petition is entitled to his costs in circumstances where the petitioner decides not to proceed with the inquiry ordered by the court. The inquiry before a jury did not proceed in this case in light of evidence from a consultant psychiatrist retained on behalf of the respondent as to the respondent's capacity which was accepted by the petitioner.

2 . The respondent's position is that he is entitled to an order for the costs of the wardship proceedings against the petitioner (who brought the petition on behalf of the Health Service Executive (“the HSE”). The petitioner's position is that, for various reasons, including the longstanding practice adopted in wardship cases, the HSE should not be liable for the respondent's costs and, instead, there should be no order as to costs. In response, the respondent maintains that the “almost invariable practice” adopted in wardship cases should not be followed in this case for various reasons.

3 . For the detailed reasons set out in this judgment, I have concluded that I should follow the practice referred to and should refuse to make an order for costs against the petitioner/the HSE. I was asked to leave over the issue as to whether the respondent's solicitors and counsel are entitled to an order for their costs out of the estate of the respondent (in accordance with the practice in wardship cases). Should such an application be made by the respondent's solicitors and counsel, I will deal with it expeditiously after this judgment is delivered.

2. Factual and Procedural Background

4 . On 19 March 2021, a representative of the HSE presented a petition on behalf of the HSE to admit the respondent to wardship. At the time of the presentation of the petition the respondent was in his mid-60s. The petition was supported by an affidavit of verification sworn by the petitioner and by affidavits and reports of two medical practitioners, a locum consultant psychiatrist with a community mental health centre in Munster (“Dr. O”) and by a consultant in psychiatry of later life with the HSE and the Midlands Mental Health Services (“Dr. M”). The petition was also supported by a social work report dated 14 December 2020, prepared by a social worker with the HSE community mental health services in Munster (“Mr. H”).

5 . At the time of the petition, the respondent was residing in the Department of Psychiatry in a hospital in the South-East. He had a long history of involvement with mental health services. He has and had the following diagnoses:

(a) schizophrenia,

(b) Asperger's syndrome,

(c) delayed processing skills (below average), and

(d) bi-polar affective disorder.

6 . Since June 2019, the respondent had had a number of admissions to hospital and to a separate HSE short term stay mental health facility in the South. He had been discharged from that short-term facility to his home in July 2019 but was found to be living in dire circumstances at home by a public health nurse. He was ultimately readmitted to the Department of Psychiatry on 16 September 2019. He was readmitted to the Department of Psychiatry in July 2020, having been discharged back to the short term stay facility for a period, readmitted to the Department of Psychiatry and subsequently admitted to a hospital in Dublin between June and July 2020.

7 . According to the petition, the respondent was unable to manage living at home and managing his financial affairs. He had received a substantial inheritance from his late brother. While acknowledging that he would not be able to manage on his own at home and while, on a number of occasions, expressing the wish to be made a ward of court, that process was not progressed until the current petition was presented on behalf of the HSE. It was the view of his treating team that the respondent should be taken into wardship in order to ensure that his future care and accommodation needs were properly attended to and to protect his interests in the context of the inheritance the respondent received from his late brother.

8 . The petition contained the undertaking required by O. 67 r. 4(2) RSC in which the petitioner undertook, on behalf of the HSE:

“…in case this petition is dismissed or not proceeded with, to pay the costs and expenses of any visitation of the respondent, or any other incident to the inquiry before the Court.”

9 . The petitioner also proposed that, in the event that the respondent was taken into wardship, it would be seeking to have the General Solicitor appointed as the respondent's committee of the person and of the estate.

10 . The petition was supported by affidavits and reports from two consultant psychiatrists, Dr. O and Dr. M. In her report, Dr. O referred graphically to the circumstances in which the respondent was found in his home in September 2019, prior to his admission that month to the Department of Psychiatry. Dr. O noted that the respondent had changed his mind several times over the course of a number of months as to where he was to be cared for and what he wished to do with his inheritance. This was a symptom of his condition. The respondent informed Dr. O that he wished to be made a ward of court on an application made on his behalf by his solicitor. Dr. O prepared a capacity assessment to support that application. In that assessment, she concluded that the respondent lacked capacity to manage his finances. Dr. O's report of 4 February 2021 contained a detailed capacity assessment on the basis of a number of examinations carried out over 2020 and early 2021. At one of those examinations, on 26 November 2020, Dr. O noted that the respondent “pleaded to be made [a] ward of court so that he can be cared for”. Dr. O agreed that that was the appropriate course, having regard to the circumstances in which he was living in 2019 and the rapid deterioration when he was discharged home that year, due to his inability to care for himself. At later examinations on 28 January 2021, and 4 February 2021, Dr. O noted that the respondent was still focused on being made a ward of court and moving to a care facility in Dublin. It remained her view that the respondent was not capable of taking care of himself or his affairs. She concluded that the respondent was of unsound mind and was not able to manage his affairs as a consequence of a combination of a debilitating serious mental illness (schizophrenia) for more than four decades and Asperger's syndrome. She stated that those conditions were unlikely to resolve to a material extent in the foreseeable future to enable him to live independently. She recommended that the respondent be made a ward of court “in keeping with his request”.

11 . Dr. M agreed with the opinion of Dr. O. She assessed the respondent on 11 December 2020. He explained to Dr. M that he felt that he was unable to look after his financial affairs and was unable to live independently. He expressed his agreement to be made a ward of court. Dr. M noted that the respondent's ability to function had deteriorated over the past couple of years and that it was likely that it would continue to deteriorate in a gradual way over time. She expressed the view that the respondent lacked capacity to make significant decisions for himself as a result of underlying mental health issues which he had had for many years and that he was of unsound mind. She stated that he was going to deteriorate over time and that it is likely that there had been a gradual deterioration in his neurocognitive abilities over many years. She supported the petition to have the respondent admitted to wardship. As I mentioned earlier, the petition was also supported by a social work report prepared by Mr. H.

12 . On the basis of the petition and supporting evidence, the then President of the High Court, Irvine P., made an inquiry order on 24 March 2021, ordering that an inquiry be carried out as to the soundness or unsoundness of mind of the respondent. Notice of the order dated 5 July 2021 and the petition were served on the respondent on 8 July 2021.

13 . Before that was done, the President requested that one of the court's medical visitors, Dr. Aoife Hunt, Consultant Psychiatrist, would visit and provide a report in relation to the respondent. Dr. Hunt provided her report on 9 April 2021. Dr. Hunt found that the respondent was “paralysed by indecision” and referred to the “paralysing ambivalence” which was the “core symptom” of his mental illness. The respondent was unable to express any decision or choice on various issues to Dr. Hunt. Dr. Hunt expressed the opinion that the respondent was a person of unsound mind who was incapable of managing his affairs. She also commented on the suitability of the respondent's place of residence. She stated that the Department of Psychiatry was not a suitable long-term place of care for the respondent. She noted that the respondent was unable to decide where he wanted to live, and that ambivalence prevented staff from arranging a suitable placement for him. She explained that the respondent needed “the comfort of a settled...