The Appropriate Care of a Ward of Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] IEHC 20
• Court: High Court
• Date: 24 January 2020

IN THE MATTER OF THE APPROPRIATE CARE OF A WARD OF COURT

[2020] IEHC 20

Denis McDonald J.

THE HIGH COURT

WARDS OF COURT

Costs – Care – Ward of Court – Committee of the Ward seeking costs – Whether Committee of the Ward was entitled to costs

Facts: On October 2019, directions were given in relation to the determination of any dispute between the parties in relation to costs. Thereafter, written submissions were delivered on behalf of both parties in relation to the issue of costs. In addition, oral argument was heard by the High Court (McDonald J) in relation to costs at a hearing which took place on 5th November, 2019. The HSE argued that it was successful in relation to both the Do Not Resuscitate Direction (DNR) issue and the care plan. While, under the normal rule, the HSE would be entitled to an order for its costs against the Committee, it was indicated that the HSE did not seek its costs. The Committee of the Ward argued that the circumstances underlying these proceedings were exceptional. Although the Committee and the HSE held opposing views as to the appropriate mode of care for the Ward, the proceedings did not involve adversarial litigation in the normal sense. The Committee argued that, in those circumstances, there was no clear “event” for the purposes of O.99. Instead, it was submitted that the proceedings were analogous to an inquiry as to the best interests of the Ward. The Committee submitted that, in substance, it succeeded in the proceedings in circumstances where: (a) it was not until immediately before the hearing, that the HSE reversed its “previously unshakeable position” that a residential placement was the only care package that would be provided to the Ward; and (b) the very significant amendment made by the HSE to its homecare plan (as set out in its letter of 4th July, 2019) was only achieved after the hearing was completed and the May judgment had been delivered. According to the Committee, this: “went a considerable distance to addressing the Committee’s concerns with the Homecare Plan previously offered by the HSE”. The Committee submitted that it was not necessary to embark on an analysis of the interests of justice in order to make an award of costs in its favour. The Committee submitted that it should be entitled to costs by reference to the normal O.99 principles. Without prejudice to that submission, the Committee argued that it was in the interests of justice that an award of costs should be made in favour of the Committee.

Held by McDonald J that the Committee was entitled to costs on O.99 principles. He held that in order to do justice between the parties, some deduction had to be made from any costs recoverable by the Committee to take account of the fact that the hearing was undoubtedly prolonged by the continued maintenance of the claim by the Committee to round the clock care by two homecare assistants. McDonald J also bore in mind that the result fell significantly short of what was sought by the Committee. It seemed to him that the outcome was best characterised as a partial success on the issue of homecare by the Committee. In addition, he had regard to the fact that the Committee had fully failed on the DNR issue. Having taken those matters into consideration, it seemed to him that, if the Committee was to be awarded costs in these proceedings, the Committee should only be entitled to recover a proportion of its costs of the proceedings. In McDonald J’s opinion, the appropriate proportion was 60%. In addition, it seemed to him that he should also disallow in its entirety the costs of one day of the four day hearing which took place in March 2019; this was to reflect the fact that at least some of the evidence which was heard by him during the course of the hearing related to the DNR issue on which the Committee had wholly failed and a more significant amount of time was spent on the case made by the Committee for round the clock care by two carers on a 365 day basis, on which the Committee also substantially failed.

McDonald J held that the Committee should be entitled to 60% of its costs of these proceedings save that no costs whatever should be allowed for one day of the four day hearing which took place in March 2019.

Costs ordered.

JUDGMENT ON COSTS of Mr. Justice Denis McDonald delivered on 24 January, 2020

1 This judgment is concerned solely with the issue of costs. The unusual underlying facts have already been set out in detail in the judgment delivered by me on 31st May, 2019 ( [2019] IEHC 393) and do not require to be repeated in detail here. In this judgment, I will use the same abbreviations as in my May 2019 judgment. In that judgment, I described the unfortunate circumstances which left the Ward in a PVS condition. While initially cared for by the HSE in a Community Nursing Unit, the Ward was subsequently transferred to a sophisticated home facility constructed specifically for her care in an extension to her parents' home. The transfer of the Ward to the home facility occurred in March 2015 and thereafter a private care team was engaged to look after the Ward. This was funded by the proceeds of a settlement paid to the Ward by way of compromise of a claim brought on her behalf relating to the brain injury sustained by her.

2 In June 2018, it became clear that the proceeds of the settlement would not be sufficient to continue to care for the Ward. Against that backdrop, the issue of the long-term care arrangements for the Ward was listed before Kelly P. (at his own direction) on Monday 2nd July, 2018 so that the court could be updated on the issue as to how the ongoing care of the ward was to be managed. The Committee of the Ward was requested to submit a proposal in relation to the Ward's long-term care arrangements. In addition, the solicitors for the HSE were notified of the matter by letter dated 14th June, 2018 which also noted that an assessment had been carried out by the HSE team of the current care needs of the Ward. Subsequently, both the Committee and the HSE set out proposals for the ongoing care of the Ward. It will be necessary, in due course, to address those proposals in more detail. It is sufficient, at this point, to note that, in broad terms, the initial position adopted by the Committee was that the Ward should continue to be cared for in the home facility at the expense of the HSE. In contrast, the initial position adopted by the HSE was that the Ward should be cared for in the Community Nursing Unit.

3 In addition, there was an issue between the parties as to the terms of an appropriate Do Not Resuscitate Direction ( “DNR”). A form of DNR had been executed by the Committee on 30th August, 2018 (following consultation with the general practitioner treating the Ward) which stated that in the event of a full cardio-pulmonary arrest, CPR should not be attempted. However, the DNR also stated that in the event of a respiratory arrest without a cardiac arrest, relief was to be provided for a period of five minutes through the mechanism of a device known as an Ambu bag which would be used to stimulate respiration. The DNR stated that CPR should not be applied if respiration had not been restored after five minutes use of the Ambu bag.

4 Having regard to the condition of the Ward and the medical advice available to the HSE, the HSE was concerned about the appropriateness of the DNR proposed by the Committee and suggested the removal of any reference to the use of the Ambu bag. There were, accordingly, three issues in dispute between the parties namely:-

(a) The appropriateness of the DNR which had been executed by the Committee on 30th August, 2018;

(b) Whether the court should accept on behalf of the Ward, the offer made by the HSE of residential care for the Ward at the Community Nursing Unit which the HSE argued was appropriate having regard to the PVS diagnosis in respect of the Ward;

(c) Whether the Committee was entitled to a court order directing the HSE to continue to fund the existing home care package. This was strongly contested by the HSE which contended that, as a matter of law, there could be no basis for any order compelling the HSE to allocate its financial or healthcare resources in a particular way. The HSE submitted that it must be in a position to decide how its resources should be applied and that it was not the function of the court to interfere in that process.

5 The matter appeared before Kelly P. on a number of occasions in the period between July 2018 and early 2019. In the course of that time, the HSE, very helpfully but without prejudice to its position as summarised in para. 4 (c), continued to fund the existing homecare package for the Ward which had been put in place by the Committee. During this period, a number of medical reports were obtained. These included a report from Professor Conor Burke who was instructed at the specific direction of Kelly P. In his report, Professor Burke suggested that, although PVS patients are usually most appropriately managed in a nursing home environment rather than at home, it would be possible to continue to maintain and care for the Ward in the home facility with a scaled down care team. Professor Burke suggested that her needs could be met by the presence, on a 24 hour basis, of one permanent carer as opposed to a permanent nurse and carer under the then current arrangements which were in place.

6 Professor Burke also dealt with the terms of the DNR. In his report, he confirmed that he had discussed the matter in detail with the Ward's parents and they confirmed their agreement to replace the DNR described above with a new DNR which would provide that no resuscitation measures should be instituted in the event of a cardiac arrest, a respiratory arrest or a cardio-pulmonary arrest. Under the replacement DNR, no use would be made of the Ambu bag or any other extraordinary measure but all comfort measures,...