J.G.H. v Residential Institutions Redress Review Committee

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly,Mr. Justice Gerard Hogan
• Judgment Date: 09 December 2015
• Neutral Citation: [2015] IECA 285
• Date: 09 December 2015
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal No. 2014/1342 Supreme Court No. 368/2014 [Article 64 Transfer] 2013 No. 827 J.R.,Court of Appeal No. 2014/368 [Article 64 transfer]

Between

J.G.H.

Applicant/Respondent

and

The Residential Institutions Redress Review Committee

Respondent/Appellant

and

The Residential Institutions Redress Board

Notice Party

[2015] IECA 285

Court of Appeal No. 2014/368

[Article 64 transfer]

THE COURT OF APPEAL

Family – Children – Abuse of child in private hospital – Appeal from High Court decision overturning Residential Institutions Review Committee award

Facts: The respondent had been transferred to a private institution for the treatment of rheumatic fever. During his stay, he was subjected to prolonged and severe abuse. He brought a claim for redress under the Residential Institutions Redress Act 2002. The Residential Institutions Review Committee made an award which he considered did not reflect the abuse he suffered. A judicial review motion was brought in the High Court, which found for the respondent and remitted the matter back to the Residential Institutions Review Committee. The appellant now sought to appeal that decision.

Held by Mr Justice Kelly, that the appeal would be allowed. Whilst the Court had every sympathy for the ordeal the respondent had suffered, the institute he was abused in was not run by the State. On that basis, the decision of the Residential Institutions Review Committee was appropriate and the High Court decision was to be overturned. The difference between compensation for abuse suffered in state and private institutions could best be addressed by the legislature.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of December 2015

1 I have had the opportunity of reading in advance the judgment which Kelly J. has just delivered. I entirely agree with his analysis, but I would wish to offer some comments of my own.

2 The appalling treatment of generations of children who were ill-treated and abused in residential institutions is, unfortunately, all too well documented. The accounts of sexual abuse, neglect and maltreatment continue to resonate within the judicial and political systems even to this day. But the sorry events disclosed by the facts of the present case reveal a hitherto unexplored and, to some extent, undocumented, catalogue of abuse of children within a clinical setting.

3 The evidence in this case shows that the applicant, Mr. H., was detained in St. Gabriel's Hospital, Cabinteely for almost two years between the ages of approximately 2 years and 4 years. He was detained again for another year between September 1964 and September 1965 between the ages of 4 years and 5 years.

4 The applicant was referred to St. Gabriel's Hospital from The National Children's Hospital, Harcourt St., Dublin 2 by Dr. Monica Lea Wilson. Dr. Lea Wilson was a consultant paediatrician attached to the National Children's Hospital, but it also seems that for many years she was the only clinician attached to St. Gabriel's which she appears to have operated as a private hospital under her own, unsupervised, personal direction. Like Kelly J., I have found the article written by Professor O. Conor Ward, ‘Rheumatic Fever in Ireland: the role of Dr Monica Lea-Wilson’ 21 Journal of Medical Biography 12 (2013) (and which was exhibited in these proceedings) of immense value in terms of piecing together the complex picture of what happened to the children who were referred to St. Gabriel's. Save where indicated, all further otherwise unreferenced quotations in this judgment are derived from this article.

5 It is, perhaps, nevertheless only fair to state that, given the nature of the application to the Board and the ensuing judicial review proceedings, the Court has, in reality, effectively heard only one side of the story. It may be that others who worked or who were treated at St. Gabriel's might, if afforded the appropriate opportunity, be in a position to paint a different picture of this hospital. The task of fact-finding is, in any event, complicated by the sheer lapse of time between the events giving rise to this complaint to the Residential Institutions Redress Board (and, by extension, these proceedings) and the present day. Nevertheless, all the evidence available to the Board (and, on appeal, to the Committee) would appear to corroborate Mr. H.'s version of events.

6 St. Gabriel's was opened in May 1951 by His Grace, Archbishop McQuaid, who ‘had been the moving force behind the development of the hospital.’ Archbishop McQuaid had tendered an invitation to a French nursing order, The Daughters of the Cross, to run St. Gabriel's. It nevertheless appeared that The Daughters of the Cross ‘were involved in work of which they had no experience’ and they followed ‘a regimen of clinical management laid down by Dr. Lea Wilson.’ Furthermore, ‘annual reports were not published’ by St. Gabriel's and ‘the principles of clinical management employed [there] never emerged in the public domain.’ Dr. Lea Wilson was never subject ‘to any system of peer review.’

7 The regime involved complete bed rest for the young children who had been referred to St. Gabriel's. After a protracted period — sometimes months — the children were allowed a half an hour out of bed, which in turn was periodically extended. As it happened, any patient:-

‘breaking the rules was put back on complete bed rest to begin the whole process all over again, sometimes in complete isolation.’

8 The consultant paediatric cardiologist retained to prepare a medico-legal report in June 2013 the case of Mr. H., Dr. Elliott A. Shinebourne, regarded this as a ‘most damning indictment of the treatment employed by Dr. Lea Wilson’, as the use of bed rest as a form of punishment ‘if a child broke certain rules has nothing to do with medical care but [was] an abuse of her position of authority.’

9 Judged by the surviving medical records of Mr. H., it would appear that this process of extensive bed rest was achieved by the widespread use of sedatives such as phenobarbitone. Mr. H. also maintains that he was force fed and subjected to terrifying ordeals such as being hung upside down by nurses through a window and being swung ‘like a pendulum.’ If true, Mr. H.'s account — and I have no reason to doubt it — would be deeply alarming.

10 It is also clear from Professor Ward's article that the majority of the children who had been referred to St. Gabriel's were not in fact suffering from rheumatic fever at all, but were rather fundamentally healthy children who from time to time had suffered from a variety of childhood ailments causing them to be admitted in the first instance to the National Children's Hospital (and, in a minority of cases, other paediatric teaching hospitals in Dublin). So far as Mr. H. is concerned, Dr. Shinebourne agrees that it was very likely that he never had rheumatic fever, even though he was apparently twice mis-diagnosed with this condition by Dr. Lea Wilson. Once admitted, however, to the National Children's Hospital these patients were then vulnerable to being referred to St. Gabriel's at the instigation of Dr. Lea Wilson following a diagnosis of rheumatic fever.

11 By the early 1960s it appears that the activities of Dr. Lea Wilson were causing alarm among the medical community. One concerned general practitioner concluded that his patient was not suffering from rheumatic fever at all, but he was concerned that she instead had developed deformed feet from bed sores and lack of exercise at St. Gabriel's. This led to nineteen sets of parents withdrawing their children from St. Gabriel's, none of whom, it would appear, were found on further examination to have had any ‘clinical evidence of rheumatic fever’ and that was apparently confirmed by a paediatric cardiologist. Some of the children, had, however, developed psychiatric disturbance as a result of the treatment regime at St. Gabriel's and they were referred for psychiatric follow-up.

12 So concerned was the medical community in the wake of the withdrawal of the nineteen patients that a group of international experts on rheumatic fever addressed a letter to Dr. Lea Wilson expressing concerning about the treatment regime. Dr. Lea Wilson apparently responded by stating that the experts ‘clearly knew nothing about rheumatic fever.’ The number of patients attending the hospital then declined to unviable proportions and it closed down in 1970.

13 It would be easy by modern standards to be critical of Dr. Lea Wilson. It is clear, however, from the medico-legal report prepared by Dr. Elliott A. Shinebourne in June 2013 that the regime in St. Gabriel's would not have been condoned ‘by any responsible paediatrician or paediatric cardiologist at that time.’ In truth, what had started off as a charitable and worthwhile project with benevolent objectives, appears subsequently to have strayed from the standards of acceptable medical and paediatric care, even judged by the prevailing medical standards of the day.

The Residential Institutions Redress Board Act 2002

14 As Kelly J. has pointed out in his judgment, there are three salient features of the Residential Institutions Redress Board Act 2002 (‘the 2002 Act’) which govern the outcome of the present appeal. First, the child must have suffered abuse as defined by s. 1 of the 2002 Act. Second, the abuse must have taken place while the child was resident at a scheduled institution: see s. 7 of the 2002 Act. Third, if these criteria are satisfied, s. 7 of the 2002 Act provides that the Board must make an award. The scheme of the 2002 Act is accordingly governed entirely by statute and by the relevant principles of statutory interpretation and there is no room at all for importing principles which might apply, for example, in an action at common law for medical negligence.

15 The difficulty so far as the applicant is concerned is that, as respects the stay in St. Gabriel's, he can satisfy only the first of these criteria and not the second. St. Gabriel's is...