Pakenham t/a Carysfort Nursing Home v Chief Inspector of Social Services

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 14 December 2018
• Neutral Citation: [2018] IEHC 715
• Court: High Court
• Docket Number: 2018 No. 315 J.R.
• Date: 14 December 2018

[2018] IEHC 715

THE HIGH COURT

JUDICIAL REVIEW

Simons J.

2018 No. 315 J.R.

BETWEEN

BREDA PAKENHAM

EDWARD PAKENHAM

BREDA AND EDWARD PAKENHAM PARTNERSHIP (TRADING AS CARYSFORT NURSING HOME)

APPLICANTS

AND

CHIEF INSPECTOR OF SOCIAL SERVICES

RESPONDENT

Judicial review – Request for information – Health Act 2007 – Applicants seeking judicial review – Whether the request for information was made in pursuit of a “function” of the respondent

Facts: The respondent, the Chief Inspector of Social Services, purported to rely on s. 65 of the Health Act 2007 to request the owners and operators of a nursing home to submit information to her in respect of fire safety issues. The 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. The dispute in the judicial review proceedings was as to whether, on the facts, the request for information was made in pursuit of a “function” of the Chief Inspector. The applicants, Mr and Ms Pakenham, contended that the statutory provisions relied upon by the Chief Inspector to ground the request for information related to powers and not functions. On that argument, the request for information was said to be invalid. The proposition was advanced that the legislation should be interpreted as providing that neither the Health Information and Quality Authority nor the Chief Inspector are charged with monitoring ongoing compliance at a nursing home.

Held by the High Court (Simons J) that it was an express function of the Chief Inspector under s. 41(1) of the 2007 Act to establish and maintain one or more registers of designated centres, and to register and inspect designated centres. Simons J held that the making of a determination on an application for registration or for the renewal of a registration is an integral and fundamental part of this function. He held that it was entirely artificial to suggest that the process of adjudicating on an application for registration or the renewal of a registration can be divorced from the registration function under s. 41(1). Simons J held that just as the decision to grant or refuse an application for registration is part and parcel of the function of establishing and maintaining a register and registering nursing homes, so too is the cancellation of an existing registration under s. 59. Accordingly, Simons J held that the Chief Inspector acted lawfully in issuing requests under s. 65 in February 2018; the requests were properly made in the course of the carrying out of her functions under s. 41(1). Simons J held that the grounds raised in respect of the validity of the District Court Summonses were matters which should be pursued before the District Court, and not by way of an application for judicial review.

Simons J held that the application for judicial review would be dismissed in its entirety.

Application dismissed.

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...