Re D. (Application of Midland Health Board)

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 1983
• Docket Number: [1987 No. 306 S.C.]
• Court: Supreme Court
• Date: 01 January 1988

In re MIDLAND HEALTH BOARD

IN THE MATTER OF AN APPLICATION BY THE MIDLAND HEALTH BOARD TO INITIATE PROCEEDINGS TO MAKE A PERSON A WARD OF COURT

1987 WJSC-SC 1983

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

306/87

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Liberty - Detention - Legality - Sole issue - Determination of complaint made pursuant to Article 40, s.4, sub-s.2, that a person is being unlawfully detained - ~Semble~: the issue should be determined solely upon a consideration of the legality of the relevant detention without taking into account any disadvantages which would arise from a release of the detainee - ~See~ Wards of Court, High Court - Article 40 - (306/87 - Supreme Court - 20/11/87) [1988] ILRM 251

|In re a Ward of Court|

HIGH COURT

Jurisdiction

Wardship - Ward - Property - Absence - Petition for an enquiry into the soundness of mind of a proposed ward - Held that the High Court has jurisdiction, in the due exercise of its discretion, to order that an adult without property be made a ward of court - ~See~ Wards of Court, High Court - (306/87 - Supreme Court - 20/11/87) [1988] ILRM 251

|In re a Ward of Court|

WARDS OF COURT

High Court

Jurisdiction - Ward - Unsound mind - Enquiry - Application of Health Board - Protection sought for adult respondent who had no property - The Board applied to the High Court for leave to file a petition seeking an enquiry into the soundness of the respondent's mind - Initial stage in the procedure for making the respondent a ward of court - Application dismissed on the ground that the High Court lacked jurisdiction because the respondent had no property - The Board appealed against the dismissal of the application - Held, in allowing the appeal, that the High Court had jurisdiction to hear a petition for an enquiry into the soundness of the mind of the respondent although she had no property - Held that the High Court had jurisdiction to order that the respondent be made a ward of court if that court, in the due exercise of its discretion, should decide to do so - Held that the provisions of the Act of 1871 were inappropriate to the wardship of an adult who had no property - ~In re Birch~ 29 L.R. Ir. 274; ~In re Godfrey~ 29 L.R. Ir. 278 considered - ~Semble~: the issue raised in an application made pursuant to Article 40, s.4, sub-s.2, of the Constitution should be determined solely upon a consideration of the legality of the relevant detention without taking into account any disadvantages which would arise from a release of the detainee - Lunacy Regulation (Ireland) Act, 1871 - Courts (Supplemental Provisions) Act, 1961, s.9 - (306/87 - Supreme Court - 20/11/87) [1988] ILRM 251

|In re a Ward of Court|

Citations:

CONSTITUTION ART 40.4.2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9(2)

COURTS OF JUSTICE ACT 1924 S19(1)

COURTS OF JUSTICE ACT 1936 S9

LUNACY REGULATIONS (IRL) ACT 1871

GODFREY, IN RE 29 LRIR 278

BIRCH, IN RE 29 LRIR 274

CONSTITUTION ART 40.3.2

MENTAL TREATMENT ACT 1945

1 JUDGMENT delivered on the 20th day of November 1987 by FINLAY C.J.[NEM DISS]

2 This is an appeal against an Order made by the President of the High Court on the 9th October 1987 refusing an application brought by the Midland Health Board (the Board) to file a Petition praying that an inquiry be had as to the soundness or unsoundness of mind of the Respondent named therein who is a girl aged twenty years.

3 Upon the hearing in the High Court the Respondent's parents were represented by Counsel and Solicitor and were heard.

4 On the hearing of this appeal, at the request of this Court, the Registrar of Wards of Court as amicus curiae was represented by Solicitor and Counsel and was heard in addition to the other parties to the appeal.

5 The Respondent has since her birth been mentally retarded. She attended as a day pupil a school for mentally retarded children, maintained by the Board, until she was eighteen years of age.

6 Thereafter, still residing at home, she attended an adult training centre maintained by the Board which was associated with the school.

7 Prior to March 1987 persons employed by the Board who were concerned with the care and training of the Respondent came to the conclusion for reasons stated by them in Affidavits before the Court, that the Respondent's welfare was at risk of serious harm should she continue to reside at home.

8 Accordingly, on the 10th March 1987 she was admitted to a residential institution suitable for mentally retarded persons maintained by the Board. In August 1987 the Respondent's parents applied to the High Court for an Order of Habeas Corpus, naming as Respondents the Board and certain other named persons. An Order pursuant to Article 40(4) (2°) of the Constitution was made on the 12th August 1987 directing the Respondents to produce the body of the Respondent before the Court on the 26th August 1987 and to certify in writing the grounds of her detention.

9 Upon the hearing of that return which was had before the learned President of the High Court, the Board sought an adjournment to permit it to lodge a Petition in Wardship and this was granted. The application under Article 40(4) (2°) of the Constitution still stands adjourned.

10 The learned President heard the application to file a Petition brought by the Board on the 2nd September 1987 and reserved his judgment on it. It would appear that the Respondent's parents were heard on that application.

11 The learned President gave judgment, though not a written judgment, on the 9th October 1987, and a note of that judgment has been made available for the appeal.

12 In addition, the learned President has submitted to this Court a full report dealing with the legal issues involved in the application which was before him. From both these documents it is clear that the learned President concluded as a matter of law that it was a condition precedent to the exercise by him of his jurisdiction to bring persons of unsound mind into his wardship, that they were entitled to property which required management an/or protection. It is also clear that the learned President concluded that the Respondent was entitled to have her welfare protected by the Courts, if that was proved to be necessary and for that purpose he directed that she should be represented by a guardian ad litem, probably being an officer of the Board who should be heard on the adjourned hearing of the application under Article 40(4) (2°) of the Constitution.

13 The sole issue arising for determination in this appeal is whether as a matter of law an entitlement to property requiring management or protection is or is not a condition precedent to the assumption of jurisdiction by the High Court and the holding of an inquiry as to the soundness or unsoundness of mind of any person.

14 It is important to emphasise that no issue arose on this appeal as to whether the evidence adduced in the High Court established an unsoundness of mind within the meaning of that phrase in the Lunacy Code. Neither did any issue arise as to whether the evidence submitted in the High Court established a necessity for the protection of the person of the Respondent. I accordingly express no view on either of these issues which have not, of course, by reason of his preliminary legal ruling been determined by the learned President.

15 The only evidence of the entitlement of the Respondent to property was that she was in receipt of a weekly allowance of £44 payable by the Board purusant to the Disabled Persons (Maintenance Allowances) Regulations 1984 (S.I. No. 71 of 1984) which was suspended at any time when she was resident in an institution and was not therefore at present payable to her. The officer of the Board presenting the Petition on its behalf undertook to lodge £500 to the credit of the Respondent if the Court should so direct "for the purpose of invoking the wardship jurisdiction".

16 The jurisdiction of the High Court in lunacy matters is provided for in Section 9 of the Courts (Supplemental Provisions) Act 1961. Subsections (1) and (2) of Section 9 read as follows:

17 2 "(1) There shall be vested in the High Court the jurisdiction in lunacy and minor matters which

18 (a) was formerly exercised by the Lord Chancellor of Ireland,

19 (b) was at the passing of the Act of 1924 exercised by the Lord...