CK v Northern Area Health Authority

 
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[2003] IESC 34

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

McCracken J.

Record No. 283/2002
K (C) v. NORTHERN AREA HEALTH BOARD (K (P) (A WARD OF COURT), IN RE)
IN THE MATTER OF A WARD OF COURT, P. K.

BETWEEN

C.K.
APPLICANT/RESPONDENT

AND

NORTHERN AREA HEALTH BOARD
RESPONDENT/APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL
NOTICE PARTIES

Citations:

HEALTH ACT 1970 S56

HEALTH ACT 1970 S60

HEALTH ACT 1970 S61

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9

HEALTH (AMDT) (NO 3) ACT 1996 S2

HEALTH ACT 1970 S50

HEALTH ACT 1970 S56(1)

HEALTH ACT 1970 S56(2)

HEALTH (AMDT) ACT 1970 S1

HEALTH (AMDT) ACT 1991 S7

HEALTH ACT 1970 S56(5)

HEALTH ACT 1970 S51

HEALTH ACT 1947 S2

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1987 ILRM 202

SINNOTT V MIN FOR EDUCATION & ORS 2001 2 IR 545

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

BRADY V CAVAN CO COUNCIL 1999 4 IR 99

SPRUYT V SOUTHERN HEALTH BOARD UNREP SUPREME 14.10.1988

CONSTITUTION ART 40

HOWARD V CMSR PUBLIC WORKS 1994 1 IR 101

D (B) V MIN HEALTH & HEPATITIS C COMPENSATION TRIBUNAL UNREP SUPREME 26.3.2003

HEALTH ACT 1970 S1(3)

HEALTH ACT 1970 S52(1)

CRAIES ON STATUTE LAW 7ED 1971 65

HEALTH ACT 1970 S61(1)(C)

Synopsis:

WARDS OF COURT

Wardship

Family Law - Disability - Ward of court - Financial assistance - Obligations of Health Board to provide care - Statutory interpretation - Provision of out-patient services - Whether Health Board in breach of its statutory duty - Health Act, 1970 - Health (Amendment) Act, 1996 (283/2002 - Supreme Court - 29/5/2003)

K(C) v Northern Area Health Board - [2003] 2 IR 544

1

Judgment of McGuinness J. delivered the 29th day of May 2003

INTRODUCTION
2

This is an appeal from the judgment and order of the President of the High Court by which he granted to the applicant a declaration that the respondent Health Board had failed to satisfy the applicant's entitlement under the Health Act 1970sections 56 and 60. In addition to the appeal by the respondent (whom I shall call "the Health Board") there was also before the Court a Notice to Vary on behalf of the notice parties (the Minister for Health and Children and the Attorney General). A document entitled Notice of Cross Appeal/to Vary on behalf of the applicant was also produced to the Court. It appeared that this cross-appeal/to vary had come into existence subsequent to the filing of the books of appeal.

3

The applicant in these judicial review proceedings is the sister of P.K., a ward of court. She is, jointly with her brother, the Committee of the Person of the Ward. The General Solicitor of Wards of Court is the Committee of the Ward's Estate. While the form of the declaratory order made by the High Court refers to the entitlement of the applicant, C.K., it is clear from the judgment of the President of the High Court and from the entire course of the proceedings that it is the entitlement under the Health Act 1970of P.K., the Ward on whose behalf the proceedings were brought, that is effectually in question.

4

Mr K., the Ward, was born in 1941. In 1976 as a result of a car accident he received a serious head injury which resulted in epilepsy and brain damage. In 1983 he was awarded damages in a personal injury action and was admitted to wardship.

5

Prior to the personal injury the Ward had married and had one son. However, at least in part due to the effects of his injuries, his marriage appears to have broken down in 1979. His wife and son reside elsewhere. The Ward resides with the applicant in premises which were purchased out of the proceeds of his personal injury claim. The applicant together with her partner and son have lived with the Ward and cared for him since 1979. The Ward did well in this environment and played a part in the household. However, in 1999 the Ward accidentally swallowed a chicken bone that lodged in his large intestine. This led to acute septicaemia. He was admitted to hospital and after a long period in intensive care he returned to his home with the applicant in a severely disabled state. He is now totally blind, and at the time of the institution of the proceedings and at the time of an earlier application to this Court in January 2001 he spoke with great difficulty, was unable to walk, dress, feed or toilet himself without assistance. He needed 24-hour care.

6

He has continued to reside at home with the applicant and her family to date. Happily his physical and mental state has considerably improved. In a recent medical report which was made available to this Court Dr. Miriam Gannon, Consultant Psychiatrist, noted that Mr K. was physically much better and more independent. Dr. Gannon noticed that there was an improvement in his short term memory and she was informed that there had been a marked improvement in the behavioural problems that were present at the time of her previous assessment. The Court was also informed that while Mr K. still needed a great deal of care he was now much improved as far as his day-to-day life was concerned. He was able to attend in Court on the hearing of the present appeal.

7

There is no doubt, however, that the applicant continues to require considerable nursing and general care assistance to enable Mr K. to remain resident at home and to be cared for there. Despite the excellent and helpful management of his own funds by the Office of Wards of Court it has for some time been clear that these funds are by no means sufficient to provide for him in the light of the second injury he sustained and its continuing effects. The applicant has accordingly sought financial and other assistance from the Health Board in order to enable Mr K. to continue to be cared for in his present home environment.

8

Since in or about April 2000 the applicant has been in communication with the Health Board in an effort to secure the type of financial and other assistance which would enable her to care for Mr K. in the way in which she feels is best for him. There is no need to describe the history of these communications in detail; suffice it to say that the Health Board now accepts that it would not be in the interests of Mr K. to transfer him to institutional accommodation.

9

As noted by the learned High Court judge in his judgment, the Health Board in a letter dated 18 th January 2001 made a comprehensive proposal for the assistance the Board would offer to the applicant for the future care of Mr K. as follows:

"We refer to the above matter and to previous correspondence."

10

The Health Board have now completed their review assessment in relation to the care and circumstances of P.K. The decision of the Board is to recommend that the present care plan in this case be revised and implemented. Our client has not been involved in the present home care arrangement. The Board will propose as follows:

11

1. That P.K continues to reside in his family home for the present.

12

2. That the present arrangement whereby the private current carers employed to care for P.K cease.

13

3. That P.K. avail of the Board's Care Attendants Scheme who would provide care to him which would be supervised and quality assured by a Senior Nurse Manager of the Board.

14

4. The Board considers that, in the circumstances of this case, these services should be available for Monday to Friday between the hours of 9.30 a.m. and 6.30p.m. In addition the Board will recommend that this care arrangement would allow for one late evening per week until the hour of 9 p.m. and a weekend day per month from the hour of 9.30 a.m. to 6.30 p.m., being a Saturday or a Sunday.

15

5. The Board considers that P.K. would benefit significantly from a social rehabilitation process. In that regard P. is presently attending a Day Activation Unit one morning per week. The Board recommends, in order to promote his welfare, that in the medium to long term he should attend such a Unit for two or possibly three days a week.

16

6. The Board also recommend that P.K. should avail of the Board's Respite Service, The Board would suggest a minimum period of two weeks per annum. In view of P.K's circumstances, to be in a position to engage with this service and taking into account the importance of adapting to a new environment, the Board would recommend a day programme at a Respite Centre to anticipate and alleviate this possible difficulty.

17

7. The Board also recommends making available as appropriate and as and when necessary community nursing services, physiotherapy and occupational therapy.

18

The provision of these services will be subject to a review on aperiodic basis having regard to the necessity to take into account any material changes that may arise in the circumstances of this situation.

19

The Board considers having regard to the position of all the interested parties, that the plan outlined in this letter meets the care requirements of P.K. We shall be glad to have...

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