A.C. v Simon Harris Minister for Health

JudgeMs. Justice Ní Raifeartaigh
Judgment Date25 October 2019
Neutral Citation[2019] IEHC 933
Docket Number[Record No. 2019/885/SS]
CourtHigh Court
Date25 October 2019

[2019] IEHC 933

[Record No. 2019/885/SS]


Wardship – Jurisdiction – Review – Applicant seeking release from hospital – Whether there was a gap in the wardship orders which rendered subsequent wardship orders invalid

Facts: The son of the applicant, a 96-year old woman living in St. Finbarr’s Hospital, Douglas Road in Cork, initiated an application brought pursuant to Article 40.4.2 of the Constitution for her release from hospital. She was a ward of court, having been admitted to wardship by the President of the High Court, Kelly P, on 19th August, 2016. The son submitted that: (i) there was a gap in the wardship orders which rendered subsequent wardship orders invalid; (ii) the Courts of Justice Act 1924 had never been validly commenced and therefore the jurisdiction of the President of the High Court in wardship did not exist; (iii) once a court has given a decision, it is functus officio, it is not entitled to review its own decisions thereafter and any further review of its decision must be another and superior court by way of appeal or review; (iv) he and his siblings had not had equality of arms in the wardship proceedings insofar as they had not had access to all the relevant documentation concerning the care of their mother; and (v) the Certificate of Detention was not valid because it was not signed by the first respondent, the Minister for Health, in circumstances where the son had chosen to designate the Minister as the respondent to this application and the High Court (Noonan J) had directed on 29th July, 2019 (when directing the enquiry pursuant to Article 40.4.2 of the Constitution) that the Minister certify the grounds for detention.

Held by the High Court (Ní Raifeartaigh J) that: (i) even if there had been a minor gap in continuity by reason of the case being adjourned overnight, the decision of the Supreme Court in E.H. v Clinical Director of St. Vincent’s Hospital [2009] 3 IR 774 indicated that such a minor defect would not be of such a nature as to render invalid the subsequent orders of the President; (ii) the Supreme Court has repeatedly made clear that the jurisdiction in wardship was not transferred but rather was vested by s. 9 of the Courts (Supplemental Provisions) Act 1961; (iii) there is a principle that a court is functus officio once it has delivered judgment, but that principle applies to a court decision on a particular finite issue which is capable of determination once and for all and the exercise of the wardship jurisdiction is an ongoing process whereby the Court exercises a supervisory jurisdiction in respect of a person whose legal status has been determined as that of a ward by reason of their personal incapacity; (iv) it ill-behoves the son to make complaints about how the process of wardship is conducted in circumstances where he had failed to attend or participate in those proceedings (because of his view that the President lacks jurisdiction to conduct those hearings) and the President operates wardships hearings in accordance with significant safeguards; and (v) it was entirely appropriate that the certificate under the Article 40.4.2 procedure was signed by a person within the Health Service Executive who had responsibility for the hospital.

Ní Raifeartaigh J held that she would refuse the application pursuant to Article 40.4.2 of the Constitution seeking the release from hospital of the applicant.

Reliefs refused.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 25th October, 2019

This is an application brought pursuant to Article 40.4.2 of the Constitution for the release from hospital of Mrs. C., a 96-year old woman currently living in St. Finbarr's Hospital, Douglas Road in Cork. She is a ward of court, having been admitted to wardship by the President of the High Court, Kelly P., on 19th August, 2016. The present application was initiated by her son, Mr. P.C., in what has now become a three-year legal battle by him to have his mother released from hospital. His efforts have to date encompassed at least four applications by him pursuant to Article 40.4.2 of the 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 University Hospital & Ors [2018] IECA 217 and A.C. & Anor v. General Manager of St. Finbarr's Hospital & Anor [2018] IECA 272); the initiation by him of plenary proceedings (currently the subject of a stay order made by the President of the High Court); and a Supreme Court decision delivered on the 17th October, 2019 (see A.C. & Ors v. Cork University Hospital & Ors [2019] IESC 73). Mr. P.C. was also the subject of attachment and committal proceedings at one point before the President of the High Court, and his appeal in respect of that process to the Court of Appeal was unsuccessful


The present application pursuant to Article 40.4.2 of the Constitution was heard by me over two dates, 31st July, 2019 and 2nd August, 2019. I reserved judgment to 11th September, 2019 because of the multiplicity of issues raised, the number of authorities and other documents handed to the Court, and the complexity of the history of the case. Although it was evident that there was some considerable overlap between the submissions made to me and the submissions Mr. P.C. had made to the Supreme Court in May 2019, I thought that I should nonetheless proceed to deliver judgment as soon as possible because of the nature of the application before me, namely an application pursuant to Article 40.4.2 of the Constitution. However, I received further unsolicited written submissions from Mr. P.C. the day before my judgment was due, and I adjourned for one week to enable the other parties to respond to his submissions if they wished to do so, which they did. On the day before the second date for judgment (fixed for 18th September, 2019), I again received further written submissions from Mr. P.C. At this stage, I decided to adjourn the delivery of judgment in the matter until after the Supreme Court judgment had been handed down, having been told that this had been listed for 16th October, 2019. I did so because Mr. P.C. was submitting to me that the Supreme Court had already decided certain matters in his favour and was also making allegations against various lawyers acting in the proceedings before me as to what had taken place in the Supreme Court. Accordingly, it seemed to me preferable to await the Supreme Court decision.

Preliminary matters

At the outset of the hearing, I made an order pursuant to s. 27 of the Civil Law Miscellaneous Provisions Act, 2008 prohibiting the publication of any matter likely to identify A.C. In my view, it would be entirely inappropriate that the identity of a vulnerable person, a woman of 96 years of age with multiple health issues and who is a ward of court, be disclosed to the media in circumstances where the hearing necessarily involved reference to highly sensitive and personal details relating to her medical conditions and her overall situation. The making of this order was opposed by Mr. P.C., a position which he stated he adopted because he wanted the media to be aware of the treatment of his mother by the State authorities, which (he said) amounted to serious mistreatment and torture. The prohibition I imposed on the publication of any details relating to the case was limited to material likely to identify A.C. herself and did not extend beyond that limited scope. Thus, the media are free to report such aspects of the case as they see fit, provided they do not identify the ward or publish material likely to identify her. I note that a similar order was made by Faherty J. upon the occasion of Mr. P.C.'s Article 40.4.2 application before her in July/August 2018.


At the outset of the hearing, upon application made to me grounded on affidavit, I also made an order joining the Committee of the Ward (Ms. Patricia Hickey) as a notice party to these proceedings. This order was also opposed by Mr. P.C. who does not accept that the Committee is acting in the best interests of the ward. I note that a similar order was made by Faherty J. in respect of the Article 40.4.2 application before her almost exactly one year ago, and that a similar order was also made by the Court of Appeal in the course of the appeals taken by Mr. P.C. against the 2016 refusal of his Article 40.4.2 applications. In the course of his ruling at that time, Ryan P. said that the motion to join the Committee was “irresistible” and that “the case could not be properly disposed or debated without having the General Solicitor for Wards of Court”.


As to the locus standi of Mr. P.C. himself to bring this application, it is the case that the present application under Article 40.4.2 was not supported by the Committee of the Ward, but I was mindful of the comments of the Court of Appeal in its judgment of 2nd July, 2018 ( A.C. & Anor v. Cork University Hospital & Anor) in relation to the same ward, which were as follows (per Hogan J.):

“34. In arriving at this conclusion I do not overlook the fact that Ms. A.C. was subsequently taken into wardship and the Court was informed during the course of the appeal that the committee of the ward has no interest in maintaining this appeal. It must be recalled, however, that the right to apply on behalf of another is deemed by Article 40.4.2 to be constitutionally inviolate. As the Supreme Court has made clear, the rights guaranteed by this constitutional provision lie beyond...

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