A.C. v Cork University Hospital, A.C v Clare

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 02 July 2018
• Neutral Citation: [2018] IECA 217
• Date: 02 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 217 Record No. 2016/353 Record No. 2016/389

[2018] IECA 217

THE COURT OF APPEAL

Hogan J.

Peart J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 217

Record No. 2016/353

Record No. 2016/389

BETWEEN/

A.C.

APPLICANT

- AND -

CORK UNIVERSITY HOSPITAL

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENTS

-AND-

GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT

NOTICE PARTY

BETWEEN/

A.C.

APPLICANT

- AND -

JOSIE CLARE, CORK UNIVERSITY HOSPITAL

and

THE HEALTH SERVICE EXECUTIVE

RESPONDENTS

-AND-

GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT

NOTICE PARTY

Unlawful detention – Article 40 of the Constitution – Hospital – Applicant seeking to appeal against High Court decisions to refuse Article 40 applications – Whether applicant was unlawfully detained by the respondent

Facts: The son of the applicant, in July 2016, made two separate applications to the High Court pursuant to Article 40.4.2 of the Constitution for an enquiry into the legality of what he contended was the detention of the applicant at the respondent hospital, Cork University Hospital. The son contended that the hospital had unlawfully refused to permit his mother to leave the hospital. Kelly P refused both applications and directed pursuant to s. 11 of the Lunacy Regulations Ireland Act 1871 that a medical visitor be appointed to report to the High Court as to the capacity of the applicant to make any decisions concerning her welfare or her property. That process culminated in a decision to take the applicant into wardship a month later in August 2016. The son appealed to the Court of Appeal against the decisions to refuse the Article 40 applications.

Held by Hogan J that Article 40.4.1 provides that all detention must be in accordance with law. Hogan J held that the reasons and motives of the detainer are not relevant to any consideration of this issue of law. Hogan J held that since no power to detain the applicant in the circumstances had been identified, it followed that he was not satisfied that the respondent hospital acted lawfully in restraining and preventing her leaving the hospital in the company of her son and daughter on the 23rd June 2016.

Hogan J held that he would to that extent allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 2nd day of July 2018

1 In July 2016 Mr. P.C. made two separate applications to the High Court pursuant to Article 40.4.2 of the Constitution for an enquiry into the legality of what he contended was the detention of his mother, Ms. A.C., at Cork University Hospital (‘CUH’). Ms. A.C. was born in October 1922 so at the date of these applications she was aged ninety three years. Mr. P.C. contended that the hospital had unlawfully refused to permit his mother to leave the hospital. For reasons I will presently set out, Kelly P. refused both applications. He did, however, direct pursuant to s. 11 of the Lunacy Regulations Ireland Act 1871 that a medical visitor be appointed to report to the High Court as to the capacity of Ms. A.C. to make any decisions concerning her welfare or her property. This process culminated in a decision to take Ms. A.C. into wardship a month later in August 2016.

2 Mr. P.C. has now appealed to this Court against these decisions to refuse the Article 40 applications. As this appeal is fundamentally concerned with whether a hospital or other institution can refuse to permit an elderly patient to leave the institution in question on the basis that it considers that she lacks the capacity make a valid request to be permitted to leave, it is clear that it raises legal and constitutional issues of far reaching importance regarding the care and welfare of the infirm elderly.

3 It is important, however, to stress that the issues raised in this appeal are purely legal - and not medical - ones. Specifically it is clear that CUH, its staff and clinicians all were at all material times devoted to the care of Ms. A.C, and at all times acted in her best interest, as they saw it. It is equally clear that Ms. A.C. has received excellent medical care from CUH and its nursing and medical teams. To repeat, therefore, the only issue presented on this appeal is a legal one, namely, whether CUH was entitled to prevent Ms. A.C. leaving the hospital in the company of her son, Mr. P.C., when, along with his sister, Ms. V.C., he attempted to take his mother home from hospital on the 23rd June 2016.

4 Before proceeding further I should note that the Court has made an order pursuant to s. 27(8) of the Civil Law (Miscellaneous Provisions) Act 2008 directing that the identity of the applicant and members of her family should not be disclosed.

The Background Facts

5 Ms. A.C. was first admitted to Cork University Hospital in October 2015. It appears that she had fallen at home and broken her right hip. It was originally envisaged that she would be discharged in early 2016. Although Ms. A.C. was well she nonetheless refused to leave hospital and her discharge was therefore deferred. She was ultimately discharged from South Infirmary Victoria Hospital to her son's house on the 5th December 2015. Unfortunately, Ms. A.C fell again and this resulted in a broken left hip. She was re-admitted to Cork University Hospital. It appears that in view of what was described by her consultant ortho geriatrician, Dr. Clare, as her ‘increasing frailty, dependence, co-morbidities and two recent hip fractures’ she was treated by a multi-disciplinary team (‘MDT’). They were of the view that Ms. A.C.'s care needs would be best met in a nursing home on discharge.

6 The MDT was, however, of the view that Ms. A.C. did not have the capacity to engage in discussions and decision making regarding her discharge plans. At the time of the Article 40 applications, Ms. A.C. was largely bed bound and required two nurses to transfer her from the bed to the chair. She was variably incontinent and at significant risk of pressure sores. She required full assistance with the activities of daily living.

7 As Ms. Lynn Oliver, a medical social worker attached to the Clinical Social Work Department deposed to in an affidavit dated the 11th July 2016, the medical and nursing personnel sought to engage with Mr. P.C. and Ms. V.C. on many occasions between February and April 2016 regarding a post-discharge plan, but these efforts were to no avail.

8 There were, moreover, concerns on the part of the MDT and the hospital concerning the attitude and behaviour of both her son, Mr. P.C., and her daughter, Ms. V.C. It would be difficult to say that these concerns were other than well-founded. I would, by way of example, instance the fact that the family members arranged for an exercise bike to be purchased for Ms. A.C. Not surprisingly this was not in accordance with the advice of the in-patient physiotherapy team. They were obviously concerned Ms. A.C. would be at the risk of further falls and further injury if she was to engage in exercise activity of this kind.

9 Furthermore, while Mr. P.C. indicated that his sister, Ms. V.C., would be managing the primary needs for Ms. A.C. on discharge, the MDT had concerns about the conduct and general behaviour of Ms. V.C. For example, Ms. V.C. apparently took her mother out in a wheelchair and was seen to be prodding her with her finger resulting in Ms. A.C. becoming distressed. On another occasion Ms. V.C. visited her mother on the ward and covered her in cayenne pepper. (Cayenne pepper is a hot chilli pepper used to flavour dishes and this pepper is also used as a herbal supplement). One can, therefore, readily understand that the MDT had real concerns about the rather eccentric behaviour of the family members and how the latter's plans for the care of their mother post-discharge appeared at times to be somewhat divorced from reality.

10 Returning now to the narrative, by late May/early June 2016 the MDT had begun to have discussions with Ms. A.C. regarding her future care needs. She indicated that she would like to go home, but she was also aware that her care needs were high. She was nonetheless of the opinion that her son, Mr. P.C. was taking care of the situation. At the same time, however, it appears that Mr. P.C. was of the opinion that the HSE would be responsible for her care needs. One of her treating consultants, Dr. Josie Clare, put the situation starkly in her affidavit of the 11th July 2016:

‘[Ms. A.C] signed a letter on the 22nd June 2016 indicating that she wished to take her own discharge from hospital. The letter had a paragraph stating ‘All costs associated with my rehabilitation at the home of my son [P.C] in…will be the responsibility and liability of Cork University Hospital and the Health Service Executive.’

11 After the self discharge letter was received on the 23rd June 2016, there was some discussion on the ward about whether a care package could be set up at short notice which would facilitate the discharge of Ms. A.C. It was, apparently, decided that it would be neither feasible nor appropriate to pursue this possibility at short notice. As Dr. Clare explained:

‘First, we had met with the community team a few days previously who had expressed concern about providing a care package without a meeting with [P.C]. Second, the letter was premised on an erroneous belief that the HSE would be liable for the full cost of rehabilitation and care post discharge. Accordingly, the clinical team were not satisfied that …. [Ms. A.C] understood the implications of taking her own discharge against medical advice and therefore asked for security and Gardai assistance in preventing [Mr. P.C] removing [Ms. A.C] from the ward on the 23rd June 2016.’

12 While Dr. Clare accepted that Ms. A.C. did have capacity to complete a nursing home support scheme application in June 2016, she nonetheless stated that Ms. A.C. was physically frail and vulnerable and that her mental state and general well being were subsequently adversely affected by...