A.C. on behalf of his mother O.C. v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 07 September 2018
• Neutral Citation: [2018] IEHC 819
• Court: High Court
• Docket Number: [2015 No. 884 S.S.]
• Date: 07 September 2018

[2018] IEHC 819

THE HIGH COURT

Barton J.

[2015 No. 884 S.S.]

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

A. C. ON BEHALF OF HIS MOTHER O. C.

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

BY ORDER OF THE COURT THE GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT

NOTICE PARTY

Involuntary placement – Jurisdiction – Wardship – Applicant seeking an inquiry into the lawfulness of the involuntary placement of the applicant’s mother – Whether the President had jurisdiction in wardship to make the orders for the involuntary placement of the applicant’s mother

Facts: These proceedings came before the High Court on foot of an order of the Court of Appeal made on the 27th July, 2018, whereby the applicant’s appeal against the order of the President, made on the 16th July, 2018, was allowed and the application remitted back to the High Court for an inquiry into the lawfulness of the involuntary placement (detention) of the applicant’s mother (the ward) at the Community Unit for Older Persons, Dalkey, Co. Dublin, to which she had been transferred from St. Vincent’s University Hospital, Dublin on foot of orders made by the President on the 16th and 23rd July, 2018 respectively. The case made on behalf of the applicant amounted to an all-out assault and challenge to the jurisdiction of the President in wardship to make the orders for the involuntary placement (detention) of the ward. Absent the jurisdiction to make such orders the applicant contended that the ward’s detention at St Vincent’s and subsequently at the Dalkey Unit, was unlawful. Moreover, as the initial removal of the ward from her home was unauthorised and without consent it tainted all subsequent actions with illegality, propositions with which the respondent, the Health Service Executive, and the notice party, the General Solicitor for Minors and Wards of the Court, took issue.

Held by Barton J that he was satisfied on the preponderance of the evidence that the initial removal from her home and placement of the ward in St. Vincent’s was undertaken with the consent of the applicant and the ward’s family in circumstances where she was mentally incapacitated. Even if that had not been the case Barton J could not accept the submission that those events and other matters complained of which preceded the ‘Placement’ and ‘Declaratory’ Orders were fatal to the legality of those and subsequent orders continuing the detention of the ward. Barton J accepted the respondent’s submissions in that regard and he was satisfied that the law which was applicable in the circumstances of this case was set out in EH v Clinical Director of St Vincent’s Hospital [2009] IESC 46, Grant v Governor of Clover Hill Prison [2015] IEHC 768 and AC v Fitzpatrick and others [2018] IEHC 570. Barton J held that, having had regard to In Re Birch (1892) 26 LR Ir 274 and In Re Godfrey (1892) 26 LR Ir 278, it appears to him to be beyond question that the jurisdiction over the persons of lunatics as exercised by the Lord Chancellor was prerogative in origin and this jurisdiction was in no way diminished or limited by legislation; the Lunacy Regulation (Ireland) Act 1871 and subsequent pre-independence statutes in Lunacy were essentially regulatory in substance. Barton J held that the prerogative jurisdiction extended to all persons found lunatic by inquisition domiciled or resident within the State whether with or without property, other than persons not found lunatic by inquisition whose estates are administered under ss. 68 and 70 of the 1871 Act, furthermore, the power exercisable by the Lord Chancellor on foot of this jurisdiction extended to directing that any person found lunatic by inquisition could be sent to, detained in, or removed from any asylum or other place of residence, or could be transferred to the care of such private persons as he might think fit, citing Harris Law and Practice in Lunacy in Ireland, Chap 1 p 8. Barton J accepted the submissions made on behalf of the respondent and the notice party and found that the jurisdiction to detain in wardship, formally exercised by the Lord Chancellors and, subsequently, by the last Lord Chief Justice of Ireland, was vested in the High Court by virtue of s. 9 of the Courts (Supplemental Provisions) Act 1961. Accordingly, Barton J found that there was no want of jurisdiction to make the orders on foot of which the ward was detained.

Barton J held that the continuing placement of the ward in the Dalkey Unit was lawful. Barton J refused the application.

Application refused.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 7th day of September, 2018.

Background

1 These proceedings come before the Court on foot of an Order of the Court of Appeal made the 27th July, 2018, whereby the Applicant's appeal against the Order of the President, made the 16th July, 2018, was allowed and the application remitted back to this Court for an inquiry into the lawfulness of the involuntary placement (detention) of the Applicant's mother, O.C. at the Community Unit for Older Persons, Dalkey, Co. Dublin, (the Dalkey Unit) to which she had been transferred from St. Vincent's University Hospital, Dublin (St. Vincent's) on foot of orders made by the President on the 16th and 23rd July, 2018 respectively.

2 The Court of Appeal directed further that the Director General of the Health Service Executive (HSE) or his nominee certify in writing the grounds upon which O.C. was being detained. The Head of Service, HSE Community Healthcare East, John O'Donovan, was nominated for this purpose. He issued a certificate, dated the 31st July, which confirmed (a) that O.C. is detained at the Dalkey Unit pursuant to the order of the President (the “Placement Order”) made on the 16th July and (b) that by order of even date (the “Declaration” Order) O.C. was also brought into wardship.

3 At the outset, I expressed concern that other than the order from which the appeal had been taken the order of the Court of Appeal made no reference to any of the orders made in wardship proceedings brought by the Respondent in respect of the welfare of O.C. (the ward). It was not entirely clear from the response of counsel for the Applicant to a query I raised in this regard what orders, other than the President's order refusing the application, were before the court or what information, if any, had been given by the Applicant about the orders made in the wardship proceedings. This is not in any way intended as a criticism of counsel but merely reflects the fact that the appeal proceeded ex parte and the Applicant was then unrepresented.

4 What is clear on the face of the “Placement Order” is that the Applicant and his father, who had been present in person when the application for an inquiry was refused, walked out of the court during the hearing in the wardship proceedings at the conclusion of which the “Placement” and “Declaration” Orders were made and that they did not thereafter return. I pause here to observe that the wardship proceedings, in which the ward, her husband and the Applicant were named as respondents, commenced by way of a Petition in Wardship, dated the 20th June, 2018, which were made available to the Court as an exhibit on affidavit sworn in these proceedings. It is evident from the “Declaration” Order that the President was satisfied and found on the medical adduced that the ward was of unsound mind and incapable of managing her person or property.

5 It appears to me, therefore, that the net effect of the Order of the Court of Appeal is to direct this Court to conduct an enquiry into the lawfulness of the detention of a citizen who has been brought into wardship and placed in a secure residential facility for her own protection and welfare on foot of certain court orders made by the President in the exercise of his jurisdiction in wardship, orders which on their face are entirely regular; to be absolutely fair to him it is not suggested otherwise by the Applicant. In so far as Order of the Court of Appeal directs this Court to hold an enquiry it would seem the Constitution appears to envisage that the jurisdiction to make such an order under Article 40.4.2 is vested exclusively in the High Court. While there was no objection to proceeding as directed, in the event the matter should proceed further the Respondent invited the Court to consider making this observation.

6 In the ordinary course it would follow that as the orders made are regular on their face the detention of the ward at the Dalkey Unit is lawful. The legal consequences in the context of an application for an enquiry under Article 40.4.2 maybe stated thus: other than in the most exceptional or extraordinary circumstances the Court is not required nor is it concerned to go behind a court order which on its face discloses no invalidity. Delivering the judgement of the Supreme Court in Ryan v. The Governor of Midlands Prison [2014] IESC 54 at para 18, Denham C.J., enunciated the general principal in the following terms:

…if an order of the court does not show an invalidity on its face, in particular if it is an order in relation to a post-conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy maybe an appeal or an application for leave to seek judicial review. In such circumstances, the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw. See also the judgment of this Court in McKevitt v. The Governor of Portlaoise Prison [2014] IEHC 442.

7 The case made on behalf of the Applicant amounts to an all-out assault and challenge to the jurisdiction of the President in wardship to make the orders for the involuntary placement (detention) of the ward. Absent the jurisdiction to make such orders the Applicant contends that the...