JGH v The Residential Institutions Redress Review Committee

• Jurisdiction: Ireland
• Judge: Dunne J.,Charleton J.,O'Malley J.
• Judgment Date: 14 December 2016
• Neutral Citation: [2016] IESCDET 148
• Court: Supreme Court
• Date: 14 December 2016

[2016] IESCDET 148

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Dunne J.

Charleton J.

O'Malley J.

Between:

JHG

Applicant

AND

The Residential Institutions Redress Review Committee

Respondent

AND

The Residential Institutions Redress Board

Notice Party

APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION

RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 9 ^th of December 2015.

REASONS:

1 This determination concerns a decision of the Court of Appeal made on 9 ^th December 2015; Kelly, Hogan and Edwards JJ [2015] IECA 285. That decision overturned the High Court decision of Kearns P, which quashed a decision of the Residential Institutions Review Committee by reason of the failure and or omission to award any points for the abuse3 that the Applicant suffered in St. Gabriel's Hospital, a non- scheduled hospital, having been transferred there from the National Children's Hospital, a scheduled Hospital. The matter was remitted back to the Residential Institutions Redress Board for an award in accordance with the provisions of the Residential Institutions Redress Act 2002. The Court of Appeal allowed the appeal on behalf of the Respondent in a written judgment of the 9 ^th December 2015 of Kelly J. and a concurring judgment of Hogan J. The Applicant now seeks leave to appeal from the Judgments and Order of the Court of Appeal.

2 The background facts are complex. But, the Court of Appeal, in the judgment of Kelly J, fairly summarised the essential nature of what the applicant Mr H had gone through. What follows is taken from the Court of Appeal judgment:

2. The applicant (Mr. H) was born on 10th January 1960. In late 1961 and early 1962, he was a patient in and resident at the National Children's Hospital, Harcourt Street, Dublin. He was suspected of having rheumatic fever. In 1962, he was transferred from there to St. Gabriel's' Hospital in Cabinteely where he remained until May 1964. He was again in Harcourt Street Hospital from 21st August 1964, until 10th September 1964, when he was again transferred to St. Gabriel's where he remained until September 1965.

3. The transfer from Harcourt Street Hospital to St. Gabriel's was directed by Dr. [AB], who was a paediatrician in Harcourt Street Hospital and was also the clinician in charge at St. Gabriel's.

4. St. Gabriel's hospital was founded in 1951 as a special voluntary hospital for rheumatic heart disease. It was a private institution.

5. There is no issue but that Mr. H suffered substantial abuse in St. Gabriel's Hospital by inter alia being sedated and confined to bed and kept immobile for long periods of time.

6. On the uncontested evidence of Dr. Elliot Shinebourne, a consultant paediatric cardiologist, Mr. H's transfer to St. Gabriel's was unnecessary on each of the occasions that he was moved there. This was because there was no definite evidence of rheumatic fever. Furthermore, the treatment to which he was subjected in St. Gabriel's had no scientific justification and was heterodox even by the standards of that time. Dr. Shinebourne expressed the view that the management of Mr. H in St. Gabriel's was unacceptable and would not have been condoned by any responsible paediatrician or paediatric cardiologist at that time.

7. There can be no doubt that the abuse of Mr. H whilst in St. Gabriel's Hospital was significant.

8. Harcourt Street Children's Hospital and St. Gabriel's Hospital were two entirely different institutions. The one connection between the two was Dr. [AB]. Having decided to transfer Mr. H to St. Gabriel's, he remained under her care at that hospital. As the clinician in charge there, she must have been aware of the practices that were carried on including the confinement of young children in a sedated state for protracted periods of time. It was as a result of the abuse suffered by Mr. H that he brought a claim for compensation pursuant to the provisions of the Residential Institutions Redress Act 2002 (the Act).

3 This is relevant because the essential claim of the applicant Mr H to redress under the 2002 Act was based on the claim that by deciding to transfer him from the scheduled hospital, allowing compensation under the Act, namely the Harcourt Street Children's Hospital, to Saint Gabriel's Hospital, liability arose.

4 This hinged essentially on statutory interpretation. In the 2002 Act, compensation for abuse of those in scheduled residential institutions is within the purview of the Residential Institutions Redress Board, but with the Committee acting as an appellate body. Abuse is defined widely and what happened to Mr H in Saint Gabriel's fits within the definition. Saint Gabriel's, according to the Court of Appeal decision, does not fit within the scheme of compensation for residents. This is a simple matter of what is in the Act or not. But, in addition, it was claimed on behalf of Mr H that by referring him from one hospital to another, the scheduled hospital became liable.

5 This argument was based on s. 1(2) of the 2002 Act, but was said to be bolstered by context, under the principle of reading the text of legislation in context. The relevant subsection reads:

References in this Act to abuse of children in institutions or which occurred in institutions include references to any case in which abuse of a...