C -v- Fitzpatrick & ors, [2018] IESC 64 (2018)

Docket Number:126/18
Party Name:C, Fitzpatrick & ors




O’Donnell J.

MacMenamin J.

O’Malley J.




Karen Fitzpatrick, Director of Nursing at

St Finbarr’s Nursing Home, the Health Service Executive, and

Comyn Kelleher Tobin Solicitors


Judgment of O’Donnell J. delivered the 20th day of December 2018


1 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.

2 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.

3 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.

  1. 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.

  2. 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...

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