C v Fitzpatrick
| Jurisdiction | Ireland |
| Judge | O'Donnell J. |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] IESC 64 |
| Court | Supreme Court |
| Docket Number | S:AP:IE:2018:000126 |
| Date | 20 December 2018 |
[2018] IESC 64
THE SUPREME COURT
O'Donnell Donal J.
O'Donnell Donal J.
MacMenamin J.
O'Malley Iseult J.
S:AP:IE:2018:000126
and
Family – Care – Elderly person – Detention in Nursing Home – Application for interlocutory relief
Facts: The applicant had been detained and placed in the care of a nursing home in Cork. An application was made by her son to challenge the legality of the detention, and the High Court had held that the detention was lawful. Following the grant od leave to appeal to the Supreme Court, an application for interlocutory relief was now before the Court
Held by O’Donnell J, that the balance of justice and convenience favoured the maintaining of the status quo pending the determination of the substantive appeal. The detention order had been held to be lawful, and medical evidence suggested the applicant’s interests were best met in her current setting. Okunade v. Minister for Justice [2012] IESC 49 applied.
This is the court's ruling on an interlocutory application brought on behalf of the applicant, A.C., by her son, P.C., seeking certain reliefs pending the hearing of an appeal in this matter. In order to understand what is in issue on this application, it is necessary to briefly set out what is in issue in the proceedings, since there has been a multiplicity of pleadings and judgments arising out of the dispute between P.C. and his sister as to the manner in which their mother has been dealt with by the HSE over the past three years. On 16 July 2018, the High Court (Kelly P.) made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 that the ward of court, A.C., should not be identified and for that reason the parties are anonymised in this judgment.
On 31 July 2018, P.C. made an application for an inquiry pursuant to Article 40.4.2� of the Constitution in respect of the detention and care of his mother, A.C., in St. Finbarr's Nursing Home, Cork. On that date, the High Court (Faherty J.) directed an inquiry into her detention in St. Finbarr's, and also directed the respondent to certify the basis of her detention. The substantial litigation background, involving a number of prior Article 40 applications, a decision of the High Court, and decisions of the Court of Appeal, are helpfully set out in the judgment of the High Court (Faherty J.) delivered on 3 August 2018 ( [2018] IEHC 570). The order of Faherty J. of 3 August 2018 recorded that the court was satisfied that the return to the order of 31 July 2018 was good and sufficient, that the applicant, A.C., was being detained in accordance with law, and that the court ordered accordingly. The schedule to the order contained a certificate of detention signed by the general manager of St. Finbarr's Hospital, Douglas Road, Cork, stating the grounds of A.C.'s detention to be the order of the High Court (Kelly P.) of 23 July 2018 appended thereto. The order of the Kelly P. of 23 July 2018 was an order made under the wardship jurisdiction on the basis that A.C. had been made a ward of court by order of the High Court on 19 August 2016. The order made on 23 July 2018 contained a number of injunctions and ancillary orders, and included, at para. 2 thereof, an order that A.C. was to remain an in-patient at St. Finbarr's Hospital, Douglas Road, Cork pending further order of the High Court.
By determination of 11 September 2018 ( [2018] IESCDET 125), the Supreme Court granted leave to the applicant to appeal to this court directly from the High Court pursuant to the provisions of Article 34.5.4� of the Constitution. The determination recited the history of the case and recorded that P.C. had suggested that there were a number of material factual errors in the High Court's judgment. It also recorded that ‘[b]roadly speaking, Mr. C. argues that wardship procedure does not offer sufficient safeguards in the context of the detention of persons allegedly suffering from a mental disorder’. Paras. 19 to 21 of the determination bear repetition:-
‘19. However, for the purposes of clarity, it must be noted that leave is now being given solely to permit an argument to be put forward to the effect that Mr. C. may, in the context of the Article 40 application, challenge the validity of the orders made in the wardship proceedings on the grounds that such orders are said not to have been made in accordance with fundamental rights guaranteed by the Constitution or in circumstances which are incompatible with legally binding obligations under the European Convention on Human Rights. The grounds to be pursued on the appeal will require to be confined within the parameters thus described. It will be for the case management judge to ensure that the written submissions filed in accordance with the Rules of Court and the statutory practice direction are so confined.
20. In addition, the Court would wish to record that, at present, there is in place an order of the High Court which is, on its face, valid and which justifies the continuing detention of Mrs. C. Obviously the focus of the appeal for which leave is hereby granted will be to determine whether those orders of the High Court can stand but unless and until those orders are overturned there remains a prima facie valid basis for the continuing detention of Mrs. C. While the appeal will, therefore, arise in the context not only of those wardship orders but also in the context of the Article 40 application, it is clear to the Court that the focus of the appeal must be on the validity of the wardship orders, for unless those orders can successfully be challenged there will remain a valid basis for the continued detention of Mrs. C. and thus no jurisdiction to make an order under Article 40.
21. Finally, having regard to the urgency of the matter, the Court will direct that any notice of intention to proceed be filed not later than Friday 14th September with written submissions on behalf of Mr. C. to be filed by the 21st September. Thereafter, the respondents must file their replying submissions not later than Friday 5th October. On the basis that those time limits are complied with the matter will be put in for case management in the week commencing Monday 8th October. It will be for the case management judge to consider how best to progress this appeal in the light of the impending decision of this Court in the McM case which may at least have some bearing on the legal issues which are likely to arise on this appeal. The case management judge may also have regard to the progress of the issue which is to be decided in the Coleman & Anor v. Clohessy proceedings.’
An application for an inquiry pursuant to Article 40.4.2� is a matter which requires to be dealt with speedily, and it is apparent from the terms of the determination that it was envisaged that there could and should be an early hearing of the appeal in this case. Steps were taken in the determination to abridge time so that the case could proceed to an early hearing. However, this motion has intervened.
On 28 September 2018, the applicant issued an ‘application for a Stay and other injunctive reliefs’ grounded upon his own affidavit. The orders sought by the applicant are as follows:-
‘(1) Stay on the High Court Order (2018/970 SS) of Ms. Justice Faherty 3 of August 2018 having appended to it Certificate of Detention dated 31 July 2018 having Order of President Kelly 23 July 2018 (WOC 8900) appended thereon
(2) Stay on High Court Order (WOC 8900) of President Kelly 16th July 2018 as Appended to Certificate of Detention dated 20th July 2018 signed by Ber Power
[This, it should be noted, is a separate certificate of detention and High Court order]
(3) An interlocutory injunction restraining the HSE from applying for and procuring pursuant to the provisions of the Lunacy Regulations (Ireland) Act 1871 as cited in Sec. 9 of the Courts Supplemental Provisions Act 1961, Interim orders and Interlocutory Orders against the life, liberty, health, welfare, and privacy of [A.C.] without advance notice, due process of law protection, and natural justice
(4) An interlocutory injunction restraining the HSE from applying for and procuring pursuant to the provisions of the Lunacy Regulations (Ireland) Act 1871 as cited in Sec. 9 of the Courts Supplemental Provisions Act 1961, Interim orders and Interlocutory Orders against the liberty, health, welfare, freedom of speech, and privacy of [V.C.], and [P.C.] without advance notice, due process of law protections, and natural justice
(5) An interlocutory injunction restraining the General Solicitor for Minors and Ward of Court from applying for and procuring pursuant to the provisions...
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A.C. & Others v Cork University Hospital & Others
...capacity. It may also be noted that in the course of a judgment on an interlocutory application in the proceedings ( C. v. Fitzpatrick [2018] IESC 64), this Court observed that recordings of telephone conversations between Mr. C. and his mother suggested that she was not incapable of expre......