A.C. v Patricia

JurisdictionIreland
CourtSupreme Court
JudgeMs. Justice Iseult O’Malley
Judgment Date17 October 2019
Neutral Citation[2019] IESC 73
Docket Number[S.C. Nos. 122 & 126 of 2018],[Supreme Court Record No. 2018/122] [High Court Record No. 2016/759 SS] [Court of Appeal Record No. 2016/389] [High Court Record No: 2016/818 SS] [Supreme Court Record No. 2018/126] [High Court Record No. 2018/970 SS]
Date17 October 2019
BETWEEN:
A.C

AND (BY ORDER)

A.C. (A WARD OF COURT SUING BY HER COMMITTEE, PATRICIA HICKEY GENERAL SOLICITOR)

-AND-

PATRICIA HICKEY GENERAL SOLICITOR

-AND-

APPLICANTS/RESPONDENTS
CORK UNIVERSITY HOSPITAL

AND

THE HEALTH SERVICE EXECUTIVE
RESPONDENTS/APPELLANTS
-AND-
GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT
NOTICE PARTY
-AND-
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE
BETWEEN:
A.C

AND (BY ORDER)

A.C. (A WARD OF COURT SUING BY HER COMMITTEE, PATRICIA HICKEY GENERAL SOLICITOR)

-AND-

PATRICIA HICKEY GENERAL SOLICITOR

APPLICANTS/RESPONDENTS
-AND-
JOSIE CLARE, CORK UNIVERSITY HOSPITAL

AND

THE HEALTH SERVICE EXECUTIVE
RESPONDENTS/APPELLANTS
-AND-
GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT
NOTICE PARTY
-AND-
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE
BETWEEN:
A.C.
APPELLANT
-AND-
KAREN FITZPATRICK, DIRECTOR OF NURSING AT ST FINBARR’S NURSING HOME, HEALTH SERVICE EXECUTIVE

AND

COMYN KELLEHER TOBIN SOLICITORS
RESPONDENTS
-AND-
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE

[2019] IESC 73

Chief Justice

O’Donnell J.

McKechnie J.

MacMenamin J.

O’Malley J.

[Supreme Court Record No. 2018/122]

[Court of Appeal Record No. 2016/353]

[High Court Record No. 2016/759 SS]

[Court of Appeal Record No. 2016/389]

[High Court Record No: 2016/818 SS]

[Supreme Court Record No. 2018/126]

[High Court Record No. 2018/970 SS]

THE SUPREME COURT

Unlawful detention – Fair procedure rights – Wardship jurisdiction – Appellant seeking to appeal against a Court of Appeal decision – Whether it is necessary to give effect to the wishes of a person who lacks capacity

Facts: The Health Service Executive (HSE) appealed to the Supreme Court against the decision of the Court of Appeal, set out in the judgment of Hogan J delivered on the 2nd July 2018 ([2018] IECA 217). That judgment dealt with two unsuccessful applications made by Mr C in the High Court in 2016 for the release of his mother from allegedly unlawful detention in Cork University Hospital (CUH). The issues raised by the HSE in this appeal related to the analysis of Mrs C’s wishes in the judgment of the Court of Appeal and its finding that she was in detention. The HSE also challenged what it characterised as a decision by the Court of Appeal that it is necessary to give effect to the wishes of a person who lacks capacity, “without regard to either the best interests of the patient, the duty owed to a patient, or the constitutional rights of a frail, unwell and vulnerable patient viewed in their totality”. In summary, the submission on this latter aspect was that if particular actions are taken in the interests of patients, any necessary restrictions on their liberty should not, in legal terms, be considered to amount to detention. Mr C appealed 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 President of the High Court exercising his wardship jurisdiction. She found that the foundation for those orders was the order of the 19th August 2016, taking Mrs C into wardship. That order had not been appealed or set aside, and was not affected by the judgment of the Court of Appeal. Faherty J made no findings as to whether or not the wardship order was lawfully made. Mr C’s appeal against that decision raised some fundamental issues in relation to the wardship jurisdiction. The exact scope of the issues, having regard to the determination of the Supreme Court when granting leave to appeal, was the subject of a dispute between the parties.

Held by O’Malley J that, concerning the HSE appeals against the finding of the Court of Appeal that Mrs C was unlawfully detained on two dates in July 2016, the analysis of that Court was flawed insofar as it did not sufficiently engage with evidence indicating that Mrs C might not, in fact, have wanted to leave hospital on those occasions but was simply complying with the wishes of others. Furthermore, O’Malley J thought that the Court was wrong in finding that her cognitive impairment was irrelevant to the hospital’s duties to her. However, since the cases were moot no order was required from the Supreme Court. Moving on to Mr C’s appeal, O’Malley J found that the procedures applied to the making of the wardship order in August 2016 were flawed in that Mrs C’s fair procedure rights were not vindicated. As far as the orders made in 2018 were concerned, O’Malley J concluded that the wardship proceedings were still in being, having commenced with the judicial act of sending out the medical visitor; this was so despite any flaws attached to the order of August 2016. O’Malley J held that, in the circumstances, the Court had jurisdiction to take urgent protective measures in the interests of Mrs C; those measures were fully justified by evidence that was never challenged on affidavit. Those parts of the orders affecting the direct interests of Mr C were upheld on appeal; therefore, while O’Malley J suggested that the High Court should revisit the order made in August 2016, she held that the claim of unlawful deprivation of liberty was not made out.

O’Malley J held that she would make no order in the HSE appeals and would dismiss Mr C’s appeal.

Appeals dismissed.

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 17th day of October, 2019.
Introduction
1

Mrs. A. C. is an elderly lady, now aged ninety-six, who broke one of her hips in 2015. She was treated in Cork University Hospital (“CUH”) and recovered sufficiently to be discharged into the care of her son, Mr. P.C. Unfortunately, she broke her other hip some days later and was readmitted to hospital. A chain of events thereafter, including two attempts by her son Mr. C. to remove her from hospital, led to a decision by the President of the High Court, on the 19th August 2016, to make her a ward of court. Subsequently, various orders were made directing that Mrs. C. was to remain in hospital, authorising covert administration of her prescribed medication and restricting visits and contact by her family members. The basis for admission to wardship was medical evidence to the effect that Mrs. C. suffered from dementia of a moderate degree and was incapable of making a decision to discharge herself from hospital or otherwise managing her own affairs, while the subsequent orders were made on the basis of the President's view that they were necessary for the protection of her health and wellbeing.

2

It must be stressed from the outset that at no stage has it been claimed by any party that Mrs. C. suffers from a mental illness of a nature that would warrant her confinement under the provisions of the Mental Health Acts.

3

The litigation, which has involved multiple proceedings, applications, orders, judgments and appeals, many of which overlapped with each other both in time and in relation to the issues raised, has its roots in disputes over medical treatment between two members of Mrs. C.'s family on the one hand, and the medical and nursing staff of two hospitals responsible for her treatment and care on the other. The Health Service Executive (“the HSE”) was the moving party in the wardship. The three Article 40.4 applications now to be considered by the Court, although brought in Mrs. C.'s name, were initiated and, for the most part, argued by her son Mr. C. All the matters dealt with in this judgment arose in the context of applications brought by him seeking the release of his mother from the hospitals in which she has been resident since 2015. Mr. C. has consistently argued that his mother is not cognitively impaired and that she wants to leave hospital.

4

When Mrs. C. was made a ward of court, the General Solicitor for Minors and Wards of Court (“the General Solicitor”) was appointed as her committee. The General Solicitor was then joined in the various proceedings as a notice party. The Irish Human Rights and Equality Commission (“IHREC”) was heard in this Court as amicus curiae.

5

In very brief summary, the first issue to be resolved is whether the Court of Appeal was correct in finding that Mrs. C. was unlawfully detained in hospital on dates in June and July 2016, being the dates relevant to the first and second Article 40.4 inquiries in the High Court. The HSE contests that finding arguing that she was not, as a matter of fact or law, detained. The third inquiry relates to a date in July 2018, when the fact of detention is admitted. Subject to resolution of a dispute about the scope of the leave to appeal granted by this Court in relation to that case, determination of the lawfulness of the detention on that date may depend upon whether or not the process by which Mrs. C. was taken into wardship breached her rights under the Constitution and/or under the European Convention on Human Rights. In any event, there is an issue to be determined as to whether various subsequent orders, made in the wardship context, breached her rights.

6

What follows is necessarily a lengthy and detailed examination of the history, evidence and arguments in the case, but it may be helpful to start by giving a brief account of the relevant proceedings and main issues. Before doing so, it may also be necessary to acknowledge that medical and caring personnel may well be unused to and uncomfortable with the categorisation of their actions in terms of “unlawful detention” or “deprivation of liberty”. However, it must be borne in mind that the Court's concern in this context is not necessarily with the criminal or tortious concepts of false imprisonment, but with the protection of the constitutional rights of vulnerable patients. The framework for resolution of this particular dispute is the constitutional guarantee of the right to liberty of all persons, including those...

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