A.C. v Fitzpatrick

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,O'Malley J.
• Judgment Date: 11 September 2018
• Neutral Citation: [2018] IESCDET 125
• Docket Number: 2018 No. 970 SS
• Court: Supreme Court
• Date: 11 September 2018

[2018] IESCDET 125

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

O'Malley J.

2018 No. 970 SS

BETWEEN

A.C.

APPLICANT

AND

KAREN FITZPATRICK, DIRECTOR OF NURSING AT ST FINBARR'S NURSING HOME, HEALTH SERVICE EXECUTIVE

AND

COMYN KELLEHER TOBIN SOLICITORS

RESPONDENTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 3 rd August 2018 (Faherty J.)

DATE OF ORDER: 3 rd August 2018 (Faherty J.); 16 th July 2018 (Kelly P.)

DATE OF PERFECTION OF ORDER: 8 th August 2018 (Faherty J.)

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 15 th AUGUST 2018 AND WAS IN TIME IN RELATION TO THE ORDER OF FAHERTY J. THE APPLICATION WAS NOT IN TIME IN RELATION TO THE ORDER OF KELLY P.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 ^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2 Furthermore the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3 In that context it should be noted that the respondents oppose the grant of leave.

Decision

4 As appears from the application for leave to appeal filed by Mr. C. and the respective respondents' notices filed on behalf of both St. Finbarr's Hospital and the General Solicitor for Minors and Wards of Court, (‘the General Solicitor’) there has been a complex history to issues concerning the lawfulness of the custody of Mrs. C. which it is necessary to briefly summarise for the purposes of providing background to the issues which arise on this application for leave to appeal.

5 The first stage of the more recent history of these events led to a judgment of the Court of Appeal delivered on the 2 ^nd July 2018 (Hogan J.) ( A.C. v. Cork University Hospital [2018] IECA 217) on appeal from decisions of the High Court (Kelly P.) refusing two Article 40 applications in relation to the alleged unlawful detention of Mrs. C. at Cork University Hospital. The first Article 40 application was made by Mr. C. on the 7 ^th July 2016, and the second on the 21 ^st July 2016. On appeal, the Court of Appeal determined that a decision taken by Cork University Hospital to decline to release Mrs. C. was unlawful on the basis that there was no legal order or authority established for her continued detention. In so determining the Court of Appeal accepted that Cork University Hospital had acted in what they considered to be the best interests of Mrs. C. having regard to her condition but nonetheless were of the view that a hospital had no legal power to decline to release a patient simply because the hospital was concerned that release was not in the patient's best interest. In substance, the decision of the Court of Appeal was to the effect that a patient must, on request, be released from a hospital in the absence of a clear legal authority either under statute or as a result of an order of court justifying a refusal to release.

6 It might be noted that at the time of the original hearing of the Article 40 applications referred to above before Kelly P., an order was made which culminated in Mrs. C. being admitted as a Ward of Court. The decision to admit Mrs. C. as a Ward of Court was effected by order of Kelly P. on the 19 ^th August 2016. The General Solicitor for Minors and Wards of Court was appointed Committee for Mrs. C. Subsequent orders were made in the context of the wardship proceedings by Kelly P. on the 11 ^th July 2018, the 16 ^th July 2018 and the 23 ^rd July 2018 each ordering amongst other things that Mrs. C. remain an in-patient at St. Finbarr's Hospital pending further order of the High Court.

7 Reference might also be made to the order of Kelly P. on the 9 ^th October 2017, made in the context of plenary proceedings issued by Mr. C. [High Court Record No. 2017/6224 P], which order stated, amongst other things, that Mr. C. be prohibited from ‘taking any proceedings which address either the life the liberty the health or the welfare of [Mrs. C] other than by an application in the Wardship proceedings…’

8 To return to the judgment of Hogan J. in the earlier proceedings to which reference has been made, it is clear in the final paragraph of that judgment that by the time the appeal in those proceedings was determined by the Court of Appeal, Mrs. C. was no longer in Cork University Hospital and thus it was not considered either necessary or appropriate to make an order for her release. However, when that order was made Mrs. C. was in St. Finbarr's hospital and Mr. C. proceeded to seek to have her released. The hospital declined to release her placing reliance on the order of Kelly P. of 23 ^rd July 2018 made in the wardship proceedings...