C.A v B.W & M.A
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 22 September 2020 |
| Neutral Citation | [2020] IECA 250 |
| Docket Number | Record No.: 2019/520 |
| Court | Court of Appeal (Ireland) |
| Date | 22 September 2020 |
[2020] IECA 250
Donnelly J.
Noonan J.
Murray J.
Record No.: 2019/520
THE COURT OF APPEAL
Personal care decision – Rights to life and bodily integrity – Powers of Attorney Act 1996 – Appellant challenging a personal care decision – Whether the evidence supported the view that it was in the donor’s best interest to remain in the nursing home
Facts: The appellant challenged a personal care decision. The appellant made extensive submissions centred on a statement that the loss of the donor’s capacity to manage his affairs, which is the threshold for the registration of an Enduring Power of Attorney, did not result in any diminution of his personal rights under the Constitution. In the appellant’s submission, the personal care decision under review, namely the placing of the donor in long term residential care, was a life altering one to which the donor himself did not consent; as this had profound consequences, it was a significant incursion into the donor’s constitutional rights. The appellant relied upon case law concerning wards of court and in particular the withholding of medical treatment. The appellant submitted that these cases, namely in Re Ward of Court (Withholding Medical Treatment) (No. 2) [1996] 2 I.R. 79 and M.X. v The Health Service Executive [2012] 3 I.R. 254 established that the donor’s wishes should have been considered and in that regard, the evidence had demonstrated that his wish to remain at home was unequivocal. In the appellant’s submission, any court asked to review a personal care decision made by an attorney must defend and vindicate the constitutional rights of the donor by firstly considering whether the decision was taken in accordance with the particular requirement of s. 6 of the Powers of Attorney Act 1996 to be in the donor’s best interests. It was submitted that the High Court had moved away from those considerations; the court had to conduct its own exercise in ascertaining what course of action was in the best interests of the donor. The core of this case concerned the jurisdiction of the High Court under s. 12(2)(b)(iv) of the 1996 Act. Both sides relied on the decision of Baker J in A.A. v. F.F. [2015] IEHC 142 to advance their views.
Held by the Court of Appeal (Donnelly J) that the approach of the President of the High Court was in its essence, correct; he took the view that he was reviewing the decision in terms of its unreasonableness or its illegality together with a regard to the fundamental rights of the applicant to life and bodily integrity. Donnelly J found that at the time of the decision of the President of the High Court, the evidence supported the view that it was in the donor’s best interest to remain in the nursing home.
Donnelly J held that the appeal would be dismissed.
Appeal dismissed.
The central issue in this case concerns the basis on which a court should exercise its jurisdiction under s. 12(2)(b)(iv) of the Powers of Attorney Act, 1996 (“the Act”) to give directions as to a personal care decision taken by an attorney under an Enduring Power of Attorney (“ EPA”) which has been registered in accordance with the provisions of the Act. The relevant provisions of the Act are cited in detail later in this judgment. In brief, s. 6 provides that personal care decisions made by an attorney shall be made in the donor's best interest. The section then lists certain matters to which regard must be had in deciding what is in a donor's best interests. Section 6(7)(c) states that in the case of a personal care decision made by an attorney, it shall be sufficient compliance with the requirement to make the decision in the donor's best interests if the attorney reasonably believes that what he or she decides is in the best interests of the donor. It is the interplay between s. 12 and s. 6 that lies at the heart of this decision.
The background to this case is the development of symptoms of severe advanced dementia by the donor of the EPA amid an increasingly fractious dispute between his seven children. The appellant in these proceedings (the applicant in the High Court hearing) is the sister of the two respondents who are the attorneys under the EPA. Each is a daughter of the donor.
The affidavit evidence in this case sets out the painful history of increasing family disharmony. It is neither appropriate nor necessary to set out in detail the allegations and counter-allegations made in the various affidavits. In the course of this judgment, I will limit my reference to the details of those allegations to that which is strictly necessary and relevant to the decision I have reached and to an understanding of why I have reached that decision.
The donor in this case, now aged 92, had lived prior to the period at issue in these proceedings, all his life on a farm in the west of Ireland. He and his wife were married for 55 years and were the parents of seven children. His wife died in June of 2017. Up to that point, although his wife was ill, she was his primary carer.
In or about 2013, the appellant and her two adult children returned to live with her parents at the family home. She was involved in the care of her mother and father. The donor executed the EPA in April 2014. He named his two daughters, who live in Ireland but on the east coast, as his attorneys. In executing the EPA, the donor did not place any restrictions on the powers of the attorneys as is permitted under the Act.
In November 2017, the attorneys sought to register the EPA. In response, the appellant and other family members raised objections to the registration. On the 16 th November, 2017, the objectors sent an email confirming that they would discontinue their objections if not pursued by the attorneys for costs. In the same email the objectors put the attorneys on notice that they would be withdrawing their contribution to the donor's care in the family home. This included their allocated time to care for the donor and also their financial support.
On the 4 th December, 2017, the High Court ordered the registration of the EPA which took effect from the 15 th January, 2018. The respondent attorneys are thus the jointly appointed attorneys under the registered EPA which had been lawfully and properly executed by the donor in accordance with the requisite legal procedures and safeguards. The attorneys did not pursue the costs at that point.
The attorneys organised care for the donor between the 29 th November, 2017 and the 5 th March, 2018 in his own home. There were paid-for carers from Monday to Friday on a 24-hour basis. The attorneys alternated weekends caring for him in the family home, coming from their own homes on the east coast to do so.
On the 5 th March, 2018, the donor was moved to a nursing home in the east of the country. The attorneys said this was for respite care. Considerable dispute on the papers arises as to how and why this took place. There is no doubt however that neither the appellant nor other members of the family were told about the move until the donor had been taken to a nursing home. It also appears that the attorneys sought to restrict visits to the nursing home and that is a source of much contention. The attorneys say that this was in the context of seeking to have the donor settle into the home having regard to the effects of his dementia. There are also further disputes about alleged inappropriate behaviour by the appellant and a brother also living in the west of Ireland in terms of their attendances at the nursing home. Whatever may be the truth in that, it appears that the particular nursing home were unwilling to care for the donor any further.
On the 8 th May, 2018 the donor was moved to a nursing home with a special dementia unit in the west of Ireland. Again, there is allegation and counter allegation made in the affidavits in respect of alleged inappropriate behaviour by the parties.
On the 27 th July, 2018, a notice of motion was issued on behalf of the appellant challenging the care decision made to place the donor in a nursing home. This was returnable to October 2018. The appellant had sought to appoint her own nominated geriatrician while the attorneys, having responded in detail to the claims made, sought the appointment of an independent medical visitor.
On the 22 nd October, 2018 the High Court appointed an independent medical visitor to make recommendations regarding the care decision and the best interests of the donor. Some dispute arose as to the nature and context of the agreement by which the High Court came to make the appointment of an independent medical visitor (“the medical visitor”). It is unfortunate that this Court was not provided with the transcript of any of the initial hearings in this case. It does appear however that the President of the High Court was mindful that he could only appoint the medical visitor with the agreement and consent of the parties.
There certainly seems to have been an undertaking given to the court on behalf of both parties to be bound by the independent medical view and the recommendations made therein. An issue raised in this appeal was whether that was an agreement to be bound by the view of the medical visitor as to the best interests of the donor or whether the agreement was simply to be bound by his medical view. As the full transcript has not been placed before this Court, I have to take the agreed minimal position. Both parties accept that there was agreement to be bound by the medical view of the medical visitor. Indeed, it is striking that at the final hearing, no submissions were made contesting the medical views contained in the reports.
By his report dated the 2 nd January, 2019, the medical...
To continue reading
Request your trial
-
DPP v Malone
...setting, the use of a knife in the assault, and the respondent's previous convictions. 26 The DPP relied on People (DPP) v Sutton [2020] IECA 250 [77], in which this Court found that “… assaults such as this one committed in the context of domestic violence and within the family home are ev......