A.C. v Fitzpatrick

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date03 August 2018
Neutral Citation[2018] IEHC 570
Date03 August 2018
Docket Number[2018 No. 970 S.S.]

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN
A.C.
APPLICANT
AND
KAREN FITZPATRICK, DIRECTOR OF NURSING AT ST. FINBARR'S NURSING HOME, HEALTH SERVICE EXECUTIVE

AND

COMYN KELLEHER TOBIN SOLICITORS
RESPONSDENTS
AND
THE GENERAL SOLICITOR FOR MINORS

AND

WARDS OF COURT
NOTICE PARTY

[2018] IEHC 570

[2018 No. 970 S.S.]

THE HIGH COURT

Unlawful detention – Article 40.4.2 inquiry – Wardship – Applicant seeking an inquiry pursuant to Article 40.4.2 of the Constitution into her detention – Whether the applicant was unlawfully detained

Facts: The High Court, on 31st July, 2018, by order of Faherty J upon the application of the son of the applicant, directed an inquiry pursuant to Article 40.4.2 of the Constitution into the detention of the applicant in St. Finbarr's Hospital, Douglas Road, Cork. The Court also made an order directing the respondents, Ms Fitzpatrick, Director of Nursing at St. Finbarr's Nursing Home, the Health Service Executive and Comyn Kelleher Tobin Solicitors, to certify the basis of the applicant's detention. The basis of the application for an inquiry was the respondent's refusal on 10th July, 2018 to permit the applicant to leave St. Finbarr's. She was 95 years of age and, by all accounts, was in frail health and suffering from senile dementia.

Held by the High Court (Faherty J) that, in all the circumstances of the case and having considered the submissions of the parties, it was satisfied that the applicant was lawfully detained in St. Finbarr's Hospital pursuant to the order of Kelly P of 23rd July, 2018, made in the exercise of his jurisdiction as conferred under s. 9(1) of the Courts of Justice Act 1961. Faherty J was further satisfied that the important and necessary safeguards as referred to by Hogan J in his judgment of 2nd July, 2018 were evident and present in this case, not just by virtue of the regular reviews conducted by the President of the High Court in the exercise of his jurisdiction in wardship, but also by virtue of the entitlement of all interested parties (not least the ward) to apply to the President of the High Court on short notice.

Faherty J held that the relief sought pursuant to Article 40.4.2 of the Constitution would be refused.

Relief refused.

JUDGMENT of Ms. Justice Faherty delivered on the 3rd day of August, 2018
1

The within proceedings concern an inquiry pursuant to Article 40.4.2 of the Constitution as to the detention of the applicant, A.C., in St. Finbarr's Hospital, Douglas Road, Cork.

2

On 31st July, 2018, by Order of the High Court (Faherty J.) upon the application of P.C., son of A.C. who made the application on behalf of his mother, the Court directed an inquiry into the detention of A.C. in St. Finbarr's. As it must, the Court also made an Order directing the respondents to certify the basis of A.C.'s detention.

3

The basis of P.C.'s application for an inquiry was the respondent's refusal on 10th July, 2018 to permit A.C. to leave St. Finbarr's. A.C. is 95 years of age and, by all accounts, is in frail health and suffering from senile dementia.

The background to the within application
4

In truth, the kernel of the within application can be traced to events in 2016. In 2016, A.C. was an in-patient in Cork University Hospital and she remained there until 14th December, 2016 when she was transferred to St. Finbarr's hospital. In a judgment delivered on 2nd July, 2018, in proceedings entitled A.C. v. Cork University Hospital [2018] IECA 217, the Court of Appeal held that Cork University Hospital acted unlawfully when it prevented P.C. and his sister V.C. from removing A.C. from the hospital on 23rd June, 2016 in circumstances where A.C. had signed a letter of discharge on the previous day.

5

Following upon Cork University Hospital's refusal in June, 2016 to let A.C. leave, P.C. made two separate applications on behalf of A.C. to the High Court pursuant to Article 40.4.2 for an inquiry into the legality of the detention of his mother. The basis of each refusal is helpfully set out in the judgment of the Court of Appeal in A.C. v. Cork University, delivered on 2nd July, 2018, as follows:

'13. The first Article 40 application was made by Mr. P.C. on the 7th July 2016. Kelly P. made an order directing the production of the applicant and directing the hospital to certify in writing the grounds of the detention. Having referred to the medical evidence, Kelly P. concluded:

"... two consultant doctors have put before the court affidavit evidence as to their view that [Ms. A.C] is unable to make a decision, insofar as this matter is concerned, herself. In other words, she lacks the capacity to make a decision pertinent to her own welfare. ...

Insofar as the Article 40 application is concerned I will not make the absolute order. I take the view that [Ms. A.C] is not in unlawful detention. She is an elderly and frail lady who has a bad history of health in recent times. I am satisfied on the evidence that she is not detained unlawfully in Cork University Hospital. The hospital authorities wish to have her discharged at the earliest opportunity possible, provided that such discharge is consonant with her wellbeing and with her health."

14. A second application was made by Mr. P.C. on Friday, the 21st July 2016. On that occasion Haughton J. directed an inquiry pursuant to Article 40.4.2. The substantive application was again dealt with by Kelly P. and on this occasion he again ruled that Ms. A.C. had not been unlawfully detained. He stated:

"[Ms. A.C] is suffering from senile dementia which is of moderate degree. It is a progressive and irreversible disorder and, in particular, her judgment is impaired as to what her care needs are and how they should reasonably be met. She does not have the mental capacity to make a decision about where she should reasonably reside. This impaired judgment is as a result of impaired cognitive function due to senile dementia. She is of unsound mind and is incapable of planning her care needs. Furthermore, in view of the cognitive impairment she is vulnerable to exploitation by others. This application is brought in the name of and purported to be made by Ms. C. I permitted her son to pursue the application today although strictly speaking, he does not have a right of audience in that regard.

I am satisfied on the basis of the evidence that I have before me that I ought not to make absolute the conditional order which was made on Friday last. Ms. C. is not in unlawful detention. It is clear that as far as the hospital are concerned they have no desire that she should stay there for one moment longer than is absolutely necessary. Having regard to her impaired state of health, she should be transferred to another facility in a manner which is appropriate. Appropriate care must be taken in that transfer. She should be transferred to facilities which can look after her needs. She is no longer, on the evidence before me, capable of making decisions in that regard. Neither does she have capacity to bring this application."'

6

As regards the Article 40 applications which were before the learned President of the High Court, while Kelly P. declined the substantive Article 40 applications, he did, however, direct, pursuant to s. 11 of the Lunacy Regulations Ireland Act, 1871 ('the 1871 Act'), that a Medical Visitor be appointed to report to the High Court as to the capacity of A.C. to make any decisions concerning her welfare or her property. This process culminated in a decision to take A.C. into Wardship, effected by Order of Kelly P. of 19th August, 2016 (bearing record no. WOC 8900) whereupon the General Solicitor for Minors and Wards of Court (hereinafter 'the General Solicitor') was appointed Committee for A.C.

7

As deposed to by David Hickey, solicitor in the firm of Comyn Kelleher Tobin (the third named respondents herein) in his replying affidavit in the within application, there have been a number of Orders made by the learned President of the High Court in Wardship upon the application of the HSE (the second named respondent herein) in respect of the welfare of A.C.

8

It appears that the placement of A.C. in St. Finbarr's came about in the following circumstances. By letter dated 8th December, 2016, Ms Patrice O'Keeffe of Comyn Kelleher Tobin wrote to Ms Sheena Lally of the Office of the General Solicitor seeking the consent of the General Solicitor as Committee of the Ward to transfer A.C. from Cork University Hospital to St. Finbarr's subject to seven conditions, and enquiring about what further procedural steps might be needed as additional orders were required relating to A.C.'s family.

9

By letter dated 9th December, 2016. Mr. James Finn, Registrar, confirmed the President's consent to discharging A.C. from Cork University Hospital and to her transfer to St. Finbarr's. In light of P.C.'s submissions to the Court in the within inquiry, it is, I believe, worthy of note that the transfer to St. Finbarr's arose subsequent to A.C. having been taken into Wardship.

10

By email dated 9th December, 2016, Ms. Lally wrote to Ms O'Keefe confirming that the President of the High Court had given his consent to the transfer on the seven conditions specified and noting that an application would need to be made on notice to A.C.'s family in respect of the additional orders about which Ms. O'Keeffe has raised queries.

11

Separately, P.C. has been the subject of a number of Orders made under the Wardship jurisdiction concerning the welfare of A.C. In 2017, three appeals were filed by P.C. with the Court of Appeal arising from those matters. According to Mr. Hickey, all of these appeals were refused by the Court of Appeal on 14th March, 2018 (in the matter of A.C. [2018] IECA 65) and the Orders of Kelly P. upheld.

12

I should say that at the outset of the hearing of the within inquiry, counsel for the General Solicitor appeared and submitted that...

To continue reading

Request your trial
5 cases
  • A.C. on behalf of his mother O.C. v The Health Service Executive
    • Ireland
    • High Court
    • 7 September 2018
    ...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 b......
  • A.C. v Patricia
    • Ireland
    • Supreme Court
    • 17 October 2019
    ...to the Supreme Court against the decision of the High Court, set out in the judgment of Faherty J delivered on the 3rd August 2018 ([2018] IEHC 570). That judgment dealt with a fresh Article 40.4 inquiry. Faherty J held that Mrs C was lawfully detained on foot of orders made by the Presiden......
  • A.C. v Simon Harris Minister for Health
    • Ireland
    • High Court
    • 25 October 2019
    ...Constitution (one of which led to a written judgment by the High Court, Faherty J., on 3rd August, 2018 – see A.C. v. Fitzpatrick & Ors [2018] IEHC 570); two successful appeals by Mr. P.C. to the Court of Appeal (judgments delivered on 2nd and 30th July, 2018 respectively – see A.C. v. Cork......
  • P.C. v Purported Judicial Successors to the Lord Chancellor of Ireland and Others
    • Ireland
    • High Court
    • 19 May 2021
    ...Constitution (one of which led to a written judgment by the High Court, Faherty J., on 3rd August, 2018 – see A.C. v. Fitzpatrick & Ors [2018] IEHC 570); two successful appeals by Mr. P.C. to the Court of Appeal (judgments delivered on 2nd and 30th July, 2018 respectively – see A.C. v. Cork......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT