Pakenham & ors t/a Carysfort Nursing Home -v- Chief Inspector of Social Services, [2018] IEHC 715 (2018)

Docket Number:2018 315 JR
Party Name:Pakenham & ors t/a Carysfort Nursing Home, Chief Inspector of Social Services
 
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THE HIGH COURT

JUDICIAL REVIEW2018 No. 315 J.R.

BETWEEN

BREDA PAKENHAM

EDWARD PAKENHAM

BREDA AND EDWARD PAKENHAM PARTNERSHIP

(TRADING AS CARYSFORT NURSING HOME)APPLICANTSAND

CHIEF INSPECTOR OF SOCIAL SERVICESRESPONDENT

JUDGMENT of Mr Justice Garrett Simons delivered on 14 December 2018

INTRODUCTION

  1. The within proceedings raise a net point of law in respect of the regulation of nursing homes. More specifically, the proceedings raise an issue as to the circumstances in which the Chief Inspector of Social Services (“Chief Inspector”) is entitled to demand information from a registered provider of a nursing home. Section 65 of the Health Act 2007 empowers the Chief Inspector to demand “such information at such time” as the Chief Inspector considers necessary to enable her to carry out her functions. It is a criminal offence to fail to comply with such a demand. Notwithstanding the mandatory nature of such a demand, the parties have employed the term “request” to describe same. For the sake of consistency, I will adopt the same term for the balance of this judgment.

  2. The Chief Inspector purported to rely on this section to request the owners and operators of a nursing home to submit information to her in respect of fire safety issues. This demand was made in circumstances where (i) the nursing home was then under investigation by the Chief Fire Officer of Dublin Fire Brigade (following a referral made by one of the Chief Inspector’s own inspectors), and (ii) there was an application for the renewal of the nursing home’s registration pending before the Chief Inspector.

  3. The dispute in these judicial review proceedings is as to whether, on the facts, the request for information was made in pursuit of a “function” of the Chief Inspector. The Applicants contend that the statutory provisions relied upon by the Chief Inspector to ground the request for information relate to powers and not functions. On this argument, the request for information was said to be invalid.

  4. Initially the Applicants had also pursued a further argument to the effect that—insofar as the regulation of nursing homes is concerned—there is a strict demarcation of functions as between (i) the Health Information and Quality Authority (“HIQA”) and (ii) the Chief Inspector. It had been alleged that the requests for information issued in the present case were invalid in that same related to matters within the exclusive jurisdiction of HIQA and not the Chief Inspector. This argument was ultimately abandoned at the hearing before me. Instead, the remarkable proposition was advanced that the legislation should be interpreted as providing that neither HIQA nor the Chief Inspector are charged with monitoring ongoing compliance at a nursing home.

    HIQA AND CHIEF INSPECTOR OF SOCIAL SERVICES

  5. Given that much of the Applicants’ case as pleaded centres on the respective roles of HIQA and the Chief Inspector of Social Services, it may be useful at this early stage to provide an overview of the regulatory scheme.

  6. HIQA was established under the Health Act 2007. Under section 7, HIQA’s object is to promote safety and quality in the provision of health and personal social services for the benefit of the health and welfare of the public. Its functions are set out at section 8. These are considered in detail at paragraph 62 below. For present introductory purposes, it is sufficient to note that one of HIQA’s functions is to set standards on safety and quality in relation to services provided by a nursing home.

  7. The Health Act 2007 also established the office of Chief Inspector. Insofar as nursing homes are concerned, the functions of the Chief Inspector include the establishment and maintenance of a register, and the carrying out of inspections in order to assess compliance with standards and regulations. In circumstances where there is significant disagreement between the parties as to the nature and extent of the Chief Inspector’s functions, it will be necessary to return to discuss these in more detail (see paragraph 47 below).

  8. One of the issues which was canvassed at the hearing before me was the precise status of the Chief Inspector within HIQA. On behalf of the Applicants, it was contended that the Chief Inspector had the status of an independent officeholder. Conversely, it was argued on behalf of the Chief Inspector herself that her status was that of an employee of HIQA. In the event, it is not necessary for me to resolve this dispute in order to determine these proceedings. This is because I find that the request for information was made in support of functions of the Chief Inspector. This finding makes it unnecessary to consider the alternative argument that the Chief Inspector qua employee would be entitled to carry out functions reserved to HIQA. For the sake of completeness, however, I set out below a brief summary of the key features of the role of Chief Inspector.

  9. The Chief Inspector is appointed by HIQA. (Special provision is made for the appointment of the first Chief Inspector under 40(3)). The Chief Inspector shall be paid the remuneration and any allowances for expenses that HIQA may determine with the approval of the Minister for Health given with the consent of the Minister for Finance.

  10. HIQA has the power to dismiss the Chief Inspector from her office if satisfied that the Chief Inspector:

    (a) has become incapable through ill health of effectively performing the functions of the office,

    (b) is adjudicated bankrupt,

    (c) is convicted of a criminal offence,

    (d) has without reasonable excuse failed to discharge her functions for a continuous period of 3 months beginning not earlier than 6 months before the day of dismissal, or

    (e) should be dismissed for any other stated reason.

  11. The Chief Inspector is accountable to the Oireachtas under section 42 of the Health Act 2007. More specifically, the Chief Inspector, at the request in writing of an Oireachtas Committee, shall attend before the committee to give a general account of the activities of the office of the Chief Inspector. Counsel on behalf of the Applicants, Ciaran Craven, SC, attached much significance to this. It was, he suggested, indicative of the independent nature of the office. In response, counsel on behalf of the Chief Inspector, Remy Farrell, SC, suggested that it was not inconsistent with the alleged status of the Chief Inspector as an employee for her to be accountable to the Oireachtas.

  12. Express provision is made under section 43 of the Health Act 2007 for the appointment of inspectors to assist the Chief Inspector. Significantly, these inspectors are appointed by HIQA and not the Chief Inspector herself.

    “43.—(1) The Authority, in accordance with section 26, may appoint the number of persons as it may determine to assist the chief inspector in the performance of the chief inspector’s functions and—

    (a) the persons appointed shall be known as Inspectors of Social Services, and

    (b) are referred to in this Act as ‘inspectors’.

    (2) An inspector shall perform the functions of the chief inspector, to the extent the chief inspector may determine, and, in performing those functions to that extent, the inspector has the same powers and duties as the chief inspector has in performing his or her functions under this Act.

    (3) A person appointed as an inspector under this section shall be given, by the Authority, a certificate of his or her appointment and, when exercising any power duly conferred on an inspector under this Act, shall produce, on request by any person affected, the certificate or a copy of the certificate, together with a form of personal identification.”

  13. As appears from the above, in accordance with subsection 43(2), an inspector may have the same powers and duties as the Chief Inspector has in performing his or her functions. This assumes a particular significance on the facts of the present case in terms of the legal status of inspections carried out at the relevant nursing home in December 2017 and January 2018. The inspections were carried out by appointed inspectors.

    FACTUAL BACKGROUND

  14. These proceedings concern events which occurred in respect of a nursing home in South Dublin known as “Carysfort Nursing Home” during the period December 2017 to March 2018. Carysfort Nursing Home is a “designated centre” within the meaning of section 2 of the Health Act 2007.

  15. The owners and operators of Carysfort Nursing Home are a partnership known as the Breda and Edward Pakenham Partnership (“the partnership”). The partnership has been registered as the “registered provider” pursuant to the provisions of section 50 of the Health Act 2007.

  16. The partnership is the third named applicant to the judicial review proceedings. The first and second named applicants are the members of the partnership, and are a mother and son. Edward Pakenham, the second named applicant, has averred in his grounding affidavit (at paragraph 5 thereof) that both he and his mother are actively involved in the management of the designated centre on behalf of the partnership, and are the contact persons in dealings with HIQA and the Chief Inspector.

  17. The partnership made an application on or about 31 July 2017 to the Chief Inspector to renew the registration of Carysfort Nursing Home as a designated centre for a further three years from the date of the expiration of its existing registration (13 February 2018).

  18. It is common case between the parties that inspections were carried out at the nursing home on 13 December 2017 and 10 January 2018, respectively. There is, however, a significant dispute as to how these inspections should be characterised in legal terms. In brief outline, the Applicants have pleaded that the inspections were compliance monitoring inspections, and were carried out on behalf of HIQA and not on behalf of the Chief Inspector. Conversely, the Chief Inspector maintains that these inspections were carried out as part of the process of determining the...

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