A.C. v General Manager of St. Finbarr's Hospital

JurisdictionIreland
JudgeMr. Justice Michael Peart,Mr. Justice Gerard Hogan,Ms. Justice Marie Baker
Judgment Date30 July 2018
Neutral Citation[2018] IECA 272
Date30 July 2018
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2018] IECA 272 Record No.: 2018/314

[2018] IECA 272

THE COURT OF APPEAL

Peart J.

Hogan J.

Baker J.

Neutral Citation Number: [2018] IECA 272

Record No.: 2018/314

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN
A.C.

AND

P.C.
APPLICANTS
- AND -
GENERAL MANAGER OF ST. FINBARR'S HOSPITAL

AND

HEALTH SERVICE EXECUTIVE
RESPONDENTS

Unlawful detention – Inquiry application – Article 40.4.2 of the Constitution – Second applicant seeking an inquiry into the legality of the first applicant’s detention – Whether the judges of the High Court to whom the application was presented each fell into error by failing to hear and determine the application

Facts: The second applicant applied to the High Court on 16th July 2018 for an order pursuant to Article 40.4.2 of the Constitution directing an inquiry into the legality of the detention of the first applicant, his mother, in St. Finbarr’s Hospital. The first High Court judge to whom he sought to make the application declined to consider it on the ground that it ought to be made to the more senior judge who was then immediately available in the adjoining court as that judge was in charge of the listing of the day’s judicial business. The second applicant then sought to make his application to that second judge. Rather than direct an inquiry the judge gave the second applicant leave to issue a notice of motion returnable to the non-jury list on 23rd July 2018 on notice to the respondents, the hospital and the Health Service Executive (HSE). On 23rd July 2018 the matter was listed before the third High Court judge who was then presiding over the non-jury list. The HSE drew his attention to an earlier order of the High Court made on 9th October 2017 purporting to prevent the plaintiff from taking any proceedings which address either the “life, the liberty or the welfare of his mother other than by application in the wardship proceedings and such application not to be brought unless two clear days notice is given to the General Solicitor for Minors and Wards of Court”. The third judge declined to hear the Article 40.4.2 application himself and transferred it to the President of the High Court. The second applicant asked the President to recuse himself on the ground that the order for the detention of his mother had been made by him, but the President declined to do so. The second applicant did not proceed to move the application for an inquiry before the President. The second applicant then sought to appeal to the Court of Appeal against those various orders.

Held by Peart, Hogan and Baker JJ that, in the events that transpired, the judges of the High Court to whom the application was presented each fell into error by failing to hear and determine the application for an inquiry under Article 40.4.2 of the Constitution once the second applicant sought to move it.

Peart, Hogan and Baker JJ held that the second applicant remained free, should he wish to do so, to make an application ex parte pursuant to the provisions of Article 40.4.2 to any judge of the High Court for an inquiry into the legality of his mother’s detention at the hospital.

Application granted.

JOINT JUDGMENT of Mr. Justice Michael Peart , Mr. Justice Gerard Hogan and Ms. Justice Marie Baker delivered on the 30th day of July 2018
1

This appeal concerns an application for an inquiry pursuant to Article 40.4.2 of the Constitution. The first applicant is now a 95 year old patient who is physically enfeebled and who is suffering from dementia. She was made a ward of court in August 2016. She is currently residing at St. Finbarr's Hospital, Cork.

2

The second applicant is her son who, in truth, makes this application on behalf of his mother. In a case concerning the same applicants, AC v. Cork University Hospital [2018] IECA 217, this Court held in a judgment delivered on the 2nd July 2018 that the Cork University Hospital acted unlawfully when it prevented her son and daughter removing Ms. A.C. from Cork University Hospital on the 23rd June 2016 when she had signed a letter of discharge on the previous day.

3

In the wake of that decision, it appears that the Health Service Executive (‘HSE’) applied to the High Court for certain orders in respect of the care and welfare of Ms. A.C. Following an interim order made on 11th July 2018, a further order was made by the High Court (Kelly P.) on 16th July 2018 directing that Ms. A.C. should remain as an in-patient at St. Finbarr's Hospital, Douglas Road, Cork pending further order of that Court. Other orders were granted preventing Mr. C. and his sister making efforts to remove Ms. A.C. from St. Finbarr's. It is also appropriate to note in this context that Ms. A.C. has been visited by the medical visitor appointed by the President of the High Court and that the medical visitor has stated that he is satisfied that she has been appropriately cared for by the staff of the hospital. At the same time it is not really in dispute that this patient is, in effect, currently detained in St. Finbarr's Hospital.

4

Subsequent to the making of these orders, Mr. P.C. applied to the High Court on 16th July 2018 for an order pursuant to Article 40.4.2 of the Constitution directing an inquiry into the legality of his mother's detention. It appears that the first judge of the High Court to whom he sought to make the application for an inquiry declined to consider the application on the ground that this application ought to be made to the more senior judge who was then immediately available in the adjoining court as that judge was in charge of the listing of the day's judicial business.

5

Mr. P.C. then sought to make his application to that second judge of the High Court. Having handed the papers to the court registrar, it appears that the judge read the papers in chambers and after about fifty minutes returned to court. He apparently acknowledged that the application raised weighty and complex issues. However, rather than direct an inquiry it appears that he gave Mr P.C. leave to issue a notice of motion returnable to the non-jury list on 23rd July 2018 on notice to the HSE and the hospital.

6

There was, however, undoubtedly some doubt as to what precisely the Court had ordered. At one point, for example, the HSE thought that an inquiry under Article 40.4.2 had been directed and it had for this purpose prepared a draft certificate of detention in which the hospital exhibited the High Court order of the 16th July 2018 as the basis for the detention. We are informed by counsel that this step was taken in case such a certificate was required to be produced to the Court on the 23rd July 2018. Following further inquiries made by this Court in the course of the hearing of this appeal, it has emerged that the High Court did not in fact direct an inquiry under Article 40.4.2 on the 16th July 2018 but rather, as we have just stated, gave the applicant leave to make such an application on notice to the HSE.

7

On 23rd July 2018 the matter was listed before the third judge of the High Court who was then presiding over the non-jury list. On this occasion counsel for the Health Service Executive very properly drew his attention to an earlier order of the High Court which had been made by the President of the High Court on 9th October 2017. This order purported to prevent the plaintiff from taking any proceedings which address either the ‘life, the liberty or the welfare of his mother [A.C.] other than by application in the wardship proceedings and such application not to be brought unless two clear days notice is given to the General Solicitor for Minors and Wards of Court, the Committee of [A.C.].’ [Emphasis provided]

8

Upon that order being brought to his attention, the third judge declined to hear the Article 40.4.2 application himself and transferred it to the President of the High Court. When the matter was called on before the President later that day, Mr. P.C. informed him that he intended to appeal to the Supreme Court against the order which had just been made transferring the case to him under Article 34.4.5 of the Constitution (i.e., the ‘leapfrog’ provisions allowing for a direct appeal to the Supreme Court with leave of that Court.) (It appears that Mr. P.C. is no longer pursuing that particular appeal.) It appears that Mr. P.C. also asked the President to recuse himself on the ground that the order for the detention of his mother had been made by him, but the President declined to do so. The applicant did not proceed to move the application for an inquiry before the President.

The appeal to this Court
9

Mr. P.C....

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