H. S. E. -v- Judge White, [2009] IEHC 242

Docket Number:2008 646 JR
Party Name:H. S. E., Judge White
Judge:Edwards J.
 
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THE HIGH COURT

JUDICIAL REVIEW2008 646 JR

BETWEEN

THE HEALTH SERVICE EXECUTIVEAPPLICANTAND

HIS HONOUR JUDGE MICHAEL WHITERESPONDENTAND

THE DIRECTOR OF PUBLIC PROSECUTIONS,

JONATHAN COSTEN, ELEANOR JOEL AND

THE ATTORNEY GENERALNOTICE PARTIESJUDGMENT of Mr. Justice John Edwards delivered on the 22nd day of May, 2009

Introduction.

On Monday the 9th of June 2008 the applicant successfully obtained an Order of the High Court (from Peart J) granting it leave to apply for diverse relief by way of judicial review, including certain Declarations and an Order of Certiorari in relation to an Order made by his Honour Judge Michael White on the 27th May 2008 arising out of an application brought by the third named notice party seeking, inter alia, the disclosure of certain documents from the applicant who is a non-party to certain criminal proceedings brought on behalf of the people of Ireland at the suit of the first named notice party against the second and third named notice parties, respectively.

Chronological background to the present proceedings.

[Before commencing this chronology it is important to state that, for the avoidance of confusion, the parties concerned with this case will be referred to in this judgment (save where otherwise referred to internally within documents quoted) either by means of how they are described in the title to the present judicial review proceedings, or by their actual names. For example, a reference to "the first named notice party" means the first named notice party in the present proceedings, i.e. the DPP, and not the first named notice party in the related criminal proceedings, i.e. the Minister for Health.]

The second and third named notice parties are a man and a woman respectively and, although not legally married, were at all material times living together informally as though they were man and wife. The late Evelyn Joel was the mother of the third named notice party. She was diagnosed as suffering from primary progressive multiple sclerosis in October 2000. In and about the month of November 2004 the late Evelyn Joel had to leave the premises in which she was then residing with her late husband's brother. She then went to stay with second and third named notice parties and their children, and was accommodated in an upstairs bedroom of the house in Enniscorthy, Co Wexford which they were renting from the local authority. She resided there for 13 months approximately until her admission to Wexford General Hospital on 1 January 2006. It is alleged that at the time of her admission to hospital she was in an extremely malnourished condition and was suffering from neglect. Evelyn Joel died on the 7th of January 2006.

Shortly after the death of the late Evelyn Joel two separate enquiries were commenced. One was a criminal investigation by An Garda Siochána into the circumstances surrounding her death. The other was an independent review of the health and personal social services provided by the HSE to the late Mrs. Joel in the two years prior to her death, commissioned on behalf of the applicant on the 13th of January 2006 at the instigation of a Mr Pat Healy, Assistant National Director of PCCC (the acronym stands for Primary Community and Continuing Care).

The Independent Review

The "independent review" commissioned by the applicant was in effect an internal review to be conducted by a review body consisting of personnel that were independent of the case though not wholly independent of the HSE. The review body as established consisted of a three-member committee (hereinafter referred to as the committee) chaired by a Dr. Joe Duggan, Consultant Geriatrician. The committee was requested:

• to review the scope, range and level of services provided by the HSE to Mrs. Evelyn Joel during the period January 2004 to January 2006 having regard to her medical condition and circumstances.

• to review the delivery and co-ordination of these services.

• to review existing protocols and procedures in the delivery of these services.

• having regard to the above to make recommendations as appropriate and to submit their report to the HSE.

• to complete their report as soon as possible.

According to an affidavit of Pauline Bryan sworn on behalf of the HSE, on the 16th of May 2008, in the Circuit Criminal Court proceedings at the centre of this judicial review, the review was commissioned by the applicant due to the unusual and tragic features that presented in the case of Mrs. Joel's death. Its terms of reference were carefully drawn to ensure that the review would not seek to apportion blame. It was not the function of the committee to engage in fact-finding save to the limited extent that it was necessary for it to do so in order to fulfill its brief of reviewing the delivery and co-ordination of services by the HSE to the late Mrs. Joel. The review was not set up for the purpose of establishing, neither was it intended to establish, the facts in relation to Mrs. Joel's death. Rather, it was concerned with, and was limited solely to enquiring into, the delivery and co-ordination of services to the late Mrs. Joel by the HSE.

The committee duly set about its work and some weeks or months later (the precise timeline is unclear), having conducted a series of interviews with personnel concerned with the case, and an extensive review of documents, prepared a draft preliminary report. According to Ms Bryan, the committee intended at this point to send relevant extracts from this preliminary draft report to interested parties and invite commentary from them as to whether there were any factual inaccuracies in the document, and/or concerning the manner in which the committee had interpreted and dealt with any documentation or information provided to it. The committee further intended to review its draft preliminary report in the light of any comments received and then to finalize it by making such revisions to their draft findings, or to the recommendations based upon their draft findings, as were considered appropriate having regard to the comments received.

However, before extracts of the draft preliminary report could be circulated to the relevant interested parties, the committee, the applicant and the applicant's Solicitor each received a communication from the Superintendent of An Garda Siochána in charge of the criminal investigation in relation to the late Mrs. Joel's death requesting that the work of the review committee should be suspended pending the outcome of the criminal investigation then being conducted by An Garda Siochána, for fear that it might prejudice the ongoing criminal investigation. This request was immediately acted upon by all concerned, the committee duly suspended its work and nothing was done to further progress the draft preliminary report.

It is unclear as to exactly when the Superintendent made his request, or as to what prompted it. It may possibly have been connected, either temporally or causally, with the publication of an article in the Irish Times on Monday the 24th of July 2006, under the byline of Fiona Gartland, and entitled "HSE inquiry into death of woman completed". As I will be referring to it again, it would seem convenient at this point to recite the contents of the archived record of it (exhibited before me) as preserved on the "ireland.com" website:

"Mon, Jul 24, 2006

An investigation into the treatment provided by the Health Service Executive to a woman suffering from multiple sclerosis who died in a severely malnourished condition has been completed, writes Fiona Gartland.

Evelyn Joel (58), from Enniscorthy, died six days after she was admitted to Wexford general hospital on January 1st this year.

Her daughter, Eleanor, who had been caring for her, said that her mother had refused to eat after her partner died in mid-December. She called the doctor on New Year's Day and an ambulance brought her mother to hospital.

The HSE set up the three-person independent investigation committee within a week of Mrs Joel's death.

It is chaired by Dr Joe Duggan, consultant geriatrician at the Mater Hospital in Dublin. The other two members are Tom O'Dwyer, former programme manager and deputy chief executive of the Southern Health Board, and Marie Faughey, Kildare/West Wicklow Local Health Office child care manager and director of public health nursing in the eastern region.

The committee was asked to review the scope, range and level of services provided by HSE to Mrs Joel between January 2004 and January 2006 for her medical condition and circumstances. It was to review the delivery and co-ordination of these services to her and to review existing protocols and procedures in service delivery.

It was also asked to make any recommendations necessary.

In a statement yesterday, the HSE said that the committee had completed its investigation after a very extensive review and was in the process of preparing its report. "This will be completed as soon as possible in keeping with the investigation committee's terms of reference," the statement said. "The HSE ... has provided the committee with access to all files, records and expertise as required."

A separate Garda investigation into the circumstances of the death of Mrs Joel was completed in March and an extensive file on the case was sent to the Director of Public Prosecutions.

Four weeks after the death, gardaí arrested two people for questioning, both of them known to Mrs Joel.

They were released without charge after being questioned at Enniscorthy Garda station on January 30th. The replies they furnished to gardaí form part of the file sent to the DPP. It remains unclear if any criminal charges would be pursued in the case.

Commenting in the aftermath of the news of Mrs Joel's death, Minister for Health Mary Harney said that it was a case of 'appalling neglect`."

Quite apart from possibly prompting the Superintendent into making the aforementioned request (and nothing turns on whether or not it did so)...

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