Silvergrove Nursing Home Ltd v Chief Inspector of Social Services and Health Information and Quality Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IEHC 774
• Docket Number: [RECORD NO. 2019/15JR]
• Court: High Court
• Date: 31 July 2019

[2019] IEHC 774

THE HIGH COURT

Ní Raifeartaigh

[RECORD NO. 2019/15JR]

BETWEEN

SILVERGROVE NURSING HOME LIMITED T/A SILVERGROVE NURSING HOME

APPLICANT

AND

CHIEF INSPECTOR OF SOCIAL SERVICES AND HEALTH INFORMATION AND QUALITY AUTHORITY

RESPONDENTS

Registration – Cancellation – Declaratory relief – Applicant seeking to quash notice of cancellation – Whether the grounds and reasons relied upon to cancel the registration of the applicant were identified under a legislative provision which did not exist

Facts: A “notice of cancellation” was issued to the applicant, Silvergrove Nursing Home, by the first respondent, the Chief Inspector of Social Services. The applicant applied to the High Court seeking to quash the notice of cancellation and to obtain a number of related declarations. The grounds upon which those reliefs were sought were as follows: (a) the grounds and reasons relied upon to cancel the registration of the applicant were identified under a legislative provision which did not exist; (b) Ground 1(1) in the notice of cancellation was grounded on an allegation that the applicant “does not have adequate understanding of its regulatory responsibilities under the Health Act 2017, and the Regulations and Standards made thereunder”, and no such Act exists nor do such regulations and standards exist; (c) the decision in the notice of cancellation was grounded on issues of non-compliance identified on 2nd February, 2016 when the first respondent and/or the second respondent, the Health Information and Quality Authority, acknowledged on 16th June, 2016 that “the failings found on [2nd February, 2016] had been satisfactorily addressed within the agreed timelines”; (d) the minutes of a meeting held on 17th October, 2018 prepared by the second respondent state that the grounds for the proposal to cancel the registration “centred on the fitness of the registered provider and that the findings of last week’s inspection [8th and 9th October, 2018] reiterated the lack of fitness of this entity”, and the latter ground found no expression in the notice of cancellation; (e) the first respondent had no registration and/or no inspection function (or ‘register’) under s. 41(1)(b) and (c) of the Health Act 2007 in respect of “designated centres” and/or “registered providers” until the Health Act 2007 (Commencement) Order 2017 (S.I. No. 429 of 2017); (f) the notice of cancellation was invalid, ineffective and/or unenforceable as it sought to cancel the registration of an entity which is not the “designated centre” and/or the “registered provider” identified in the opposition papers and/or in the 2016-2019 certificate of registration.

Held by Ní Raifeartaigh J that the application in this case involved an applicant entity making highly technical complaints about a process, and set of documents regarding a process, where there was fundamentally no want of natural justice in that process and in circumstances where there was in existence a perfectly adequate mechanism to challenge the cancellation of registration under a cheap and efficient statutory procedure, which would have been better able to focus on the substantive merits of the applicant’s fitness to run a nursing home.

Ní Raifeartaigh J held that she would exercise the discretion which the Court has in judicial review proceedings to refuse relief even if she were to be legally incorrect in respect of any of the very technical legal aspects of the submissions made on behalf of the applicant.

Reliefs refused.

Written judgment of ex tempore ruling of Ms. Justice Ní Raifeartaigh delivered on 31st day of July, 2019

Nature of the case

1 This case concerns a nursing home and a “notice of cancellation” which was issued to the nursing home by the Chief Inspector of Social Services. The applicant seeks to quash the notice of cancellation and to obtain a number of related declarations.

Silvergrove Nursing Home Limited

2 The most recent certificate of registration for the applicant entity is dated 7th October, 2016. In the normal course, this certificate would have been due to expire on 7th October, 2019. It describes both the registered provider and the designated centre as “Silvergrove Nursing Home Limited”.

3 On 18th June, 2018, the Chief Inspector gave notice of a proposed decision to cancel in accordance with s. 53 of the Health Act, 2007. This was followed on the 17th October, 2018 by a notice of decision to cancel registration under s. 55 of the Act. The decision to cancel is the decision impugned in these proceedings.

Relevant legislation

4 The Health Act 2007 (“the Act of 2007”) established the Health Information and Quality Authority (“HIQA”) as well as the position of Chief Inspector of Social Services (“the Chief Inspector”). It also provided for a scheme of registration and inspection of residential services in respect of various sectors. This included the registration and inspection of nursing homes. The office of the Chief Inspector was dealt with under Part 7 of the Act of 2007. The Chief Inspector's remuneration, expenses, period of office and terms of office were placed under the control of HIQA subject to the approval of the Minister for Health (and with the consent of the Minister for Finance). It provided that HIQA may dismiss a Chief Inspector for any of the reasons set out in s. 40(6) of the Act of 2007.

5 Section 41 of the Act of 2007 set out the functions of the Chief Inspector which included the establishing and maintaining of one or more registers of designated centres, and of registering and inspecting designated centres.

6 Section 43 provided that HIQA may, in accordance with the terms of the appointment of HIQA employees under s.26, appoint “inspectors of social services” to assist the Chief Inspector in his or her functions.

7 Section 46 of the Act of 2007 provided that it would be a criminal offence to carry on a designated centre unless registered under the Act.

8 Part 8 of the Act of 2007 dealt with applications for registration and renewals of registration. Central to the decision in this regard is that the Chief Inspector is satisfied of the fitness of the registered provider and of the persons who participate in the management of the designated centres.

9 An appeal to the District Court from a decision to cancel registration is provided for by s. 57 of the Act of 2007.

Chronology of events relevant to these proceedings

10 The relevant chronology of events may be summarised as follows. On 7th October, 2013, the applicant nursing home obtained a certificate of registration as a designated centre. On 7th October, 2016, it obtained a subsequent certificate of registration.

11 A number of inspections were carried out at the nursing home over a period of time. These inspections occurred on 2nd February, 2016; 16th June, 2016; 23rd January, 2018; 11th April, 2018; and 31st May, 2018. The pattern was as follows: the inspections took note of various shortcomings in the running of the home; recommendations were made as to how these shortcomings should be addressed; and the response of the applicant on each occasion was not to dispute the findings in terms of their accuracy but to seek some time to address the shortcomings that had been identified.

12 On 18th June, 2018, a notice of proposed decision to cancel was issued to the applicant. The applicant was invited to make representations in accordance with the procedure envisaged under section of 54 the Act of 2007. On 15th July, 2018, the applicant submitted written representations which, again, did not dispute the factual findings in respect of the state of affairs at the nursing home but stated that it was committed to addressing the concerns and gave various detailed assurances in relation to the matters raised.

13 On 3rd August, 2018, an unannounced inspection was conducted. A further unannounced inspection was conducted across 8th and 9th October, 2018.

14 On 17th October, 2018, a meeting was held between HIQA and the Chief Inspector of Social Services.

15 On 18th October, 2018, a notice of decision to cancel registration issued to the applicant. I will discuss this document further below.

16 On 7th November, 2018, a letter was sent by the applicant's solicitors referring to steps which had been taken since the meeting, including the appointment of a re-configured senior management team. The letter requested that the Chief Inspector withdraw the notice in order to afford the company a reasonable period of time within which to address the matters without the necessity to engage valuable court time. The letter also complained about errors on the face of the notice itself and set out in detail the correct statutory provisions which should have been referred to, and attached a Schedule of “anomalies” within the notice of cancellation.

17 A response from the Chief Inspector refusing this request was received on 9th November, 2018. This letter pointed out that the first page of the notice had set out that the cancellation was based on s.51(2)(b) of the Act of 2007 and the letter then quoted it as follows: “that, in the opinion of the chief inspector, the registered provider or any other person who participates in the management of the centre is not a fit person to be the registered provider of the centre or to participate in its management”. It went on to say that the Schedule to the notice contained detailed particulars regarding “the fitness of your client broken down in to six separate headings”.

18 A notice of appeal was filed in the District Court in accordance with the statutory procedure set out under s.57 of the Act of 2007 on 13th November, 2018.

19 On 10th December, 2018, there was a further unannounced inspection, and a follow-up report acknowledged some “recent improvements” and that there had been “decisive action to change the management structure in the centre”. However, the report noted that the new...