Supreme Court remits ward of court access to judicial review to High Court President for determination.

THE SUPREME COURT

169/00

Denham J.

McGuinness J.

Geoghegan J.

IN THE MATTER OF A WARD OF COURT (P.K.)

AND IN THE MATTER OF THE APPLICATION OF C.K.

APPEAL BY C.K.

Judgment of Mrs. Justice Denham delivered on the 19th day of January, 2001

1. Facts

This is an appeal by C.K., hereinafter referred to as the applicant, against the order made by the learned President of the High Court

on 9th June, 2000. The facts of the case relate to a ward of court, P.K., hereinafter referred to as the ward of court. The ward of

court was born in 1941, and sustained a head injury in 1976 which affected his mental capacity. In 1983 he was awarded damages in

a personal injury action and admitted to wardship. His sister, C.K., the applicant herein, was appointed Committee of his Person and

Estate.

Prior to the personal injury the ward of court had married and had one son. However, his marriage appears to have broken down in

1979, his wife and son reside elsewhere. The ward of court resides with the applicant in premises which were purchased out of the

proceeds of his personal injury claim. The applicant together with her partner and son have cared for the ward of court since 1979.

He did well in this environment and played a part in the household. However, in 1999 the ward of court swallowed a chicken bone that

lodged in his large intestine. This led to septicaemia. He was admitted to hospital and after a long period in intensive care he returned

to his home with the applicant in a severely disabled state. He is now totally blind, he speaks with great difficulty, he cannot walk,

wash, dress, feed or toilet himself without assistance.

2. Judicial Review Proceedings

There have been convoluted court proceedings in this matter. On the 13th April, 2000, a motion came before Kelly J. in the High Court

on behalf of the applicant seeking leave ex parte to apply for judicial review. It was ordered in the proceedings, which were against

the Northern Area Health Board:

“1. that the Minister for Health and Children, Ireland and the Attorney General be joined as Notice Parties to these proceedings

2. that the said Applicant do have leave to apply by way of application for judicial review for the aforesaid reliefs on the

grounds set forth at paragraph D in the said statement

3. that the said Applicant do within 10 days from the date of perfection of this Order, serve an originating Notice of Motion

together with copies of the aforesaid Statement and verifying Affidavit and of this Order on the Respondent and on the Chief

State Solicitor on behalf of the Notice Parties.

4. that the costs of this application and Order be reserved.”

The reliefs included the following:

“(i) Injunction or order of mandamus directing that the Respondents or one of them to provide appropriate community care

services to [P-K-] in his home... so that his existing and future needs and just quality of life can be maintained; the precise

requirements of such order to be determined at the trial of this application for judicial review;

(ii) Alternatively, an order that the Respondents or one of them shall fund the provision of such service presently costing

approximately £750 per week;”

On an application of counsel for the respondent in relation to the issue of jurisdiction on the 2nd June, 2000, Kelly J. made an order

which stayed these proceedings pending an application for directions being made to the President of the High Court and also ordered

that nothing be published that would identify the ward of court.

3. The President of the High Court

The matter coming before the President of the High Court, he delivered judgment on the 9th June, 2000, as follows:

“The Applicant Ms.K- got leave to seek Judicial Review for the reliefs set out in the Notice of Motion in these proceedings i.e. J.R. No.

168/2000. When the matter came before Mr. Justice Kelly, he was referred to s. 9 of The Courts (Supplemental Provisions) Act, 1961

and rightly stayed these proceedings.

The parties thereafter attended in my chambers. Counsel on behalf of Ms.K-applied for leave to continue the proceedings. I refused

this application. I indicated that there was a recognised and approved procedure for obtaining the approval of the President of the

High Court for the institution of proceedings on behalf of a Ward of Court. Such application is made by the Committee of the estate of

the Ward and the merits of the application are considered inter alia on the prospects of success of thecontemplated action.

Accordingly, Counsel’s Opinion is normally furnished. I indicated to the Applicants that I would immediately entertain any such

application. I would have thought that such an application would have been made but in fact no such application was made to me.

With regard to the present Notice of Motion, the Moving Party Ms. K- is not the Committee of the estate of the Ward. The General

Solicitor is. The claim which the Applicant now seeks to make is for the provision to the Ward of funds to enable him to obtain nursing

and maintenance services. In my view it is not appropriate that the Committee of the person of the Ward institutes such proceedings

on behalf of the Ward. That is the duty of the Committee of the estate of the Ward who is theGeneral Solicitor.

Accordingly I refuse permission to Ms. K- to commence proceedings behalf of the Ward.

In doing so I want to make it clear that Ms. K- does not require my permission to institute her own proceedings seeking any relief to

which she may be

entitled. If, therefore, she wishes to maintain proceedings in her own name and on her own behalf for the recovery of the cost of

these nursing expenses she is at liberty to do so, insofar as I am concerned, but the proceedings must not be brought on behalf of or

in the name of the Ward.

The Respondents have suggested that there is a conflict of interest between Ms. K-and the Ward which centres around his continued

occupation of his dwelling house. I am of the view that there is a potential conflict of interest and accordingly for this reason also I

believe that it is improper that the present proceedings be prosecuted on behalf of the Ward by Ms. K-.

With regard to the remainder of the relief sought in the Notice of Motion I do not have any function in relation to the extension of the

grounds for seeking a Judicial Review nor do I propose to make any Order in relation to any other of the reliefs claimed.

Counsel for the Ward sought clarification that the Judicial Review proceedings weretherefore to be deemed at an end and this

confirmation was given by the Court.”

4. Appeal

Against that order the applicant has appealed pleading that the learned President erred in law and/or in fact as follows:

“1. There was no evidence to suggest that the Ward would in any way be prejudiced if the Appellant were allowed to proceed

with her judicial review application before either the President or a judge duly nominated by him, nor can any such prejudice be

seriously envisaged, inter alia -

a) No order for costs will be made against the Ward;

b) It is inconceivable in any event that either the Health Board or the Notice Parties would seek a costs order against the

Ward

c) It is impossible to conceive of how prosecuting the judicial review would put in jeopardy the Ward’s assets and such

claim as the Appellant made through other solicitors to an interest in the Ward’s house cannot in any way be affected by

permitting her to prosecute the judicial review.

2. The reasons given for refusing to permit the judicial review to continue are so vague and unparticularised as not to

constitute satisfactory reasons.

3. No good reason or any reason was given for refusing the application to adjourn a determination on relief (iv) (i.e. suing as the

Ward’s Committee) until all relevant evidence could be before the Court.

4. The Appellant is being denied her right of access to the court is a matter of very considerable moment to her, her husband

and child and to her two brothers, including the Ward, in contravention of the Constitution’s guarantee of such access and also

that under Article 6 of the European Convention on Human Rights; such denial is particularly unwarranted when a judge of the

High Court (Kelly J.) has not alone held that the Appellant had a prima facie arguable case but considered the issues being

raised to be so that he directed that the Minister for Health and Children, Ireland and the Attorney General should be added as

notice parties.”

On this appeal the Court determined that the matter should be heard in camera.

5. Submissions

Dr. Michael Forde, SC, counsel for the applicant, described the ward’s position as being a man approaching 60, that for the last 25

years he has been minded by his sister and her partner, that up to two years ago he was mildly handicapped, that he had been

abandoned by his wife and son many years ago, that after his accident two years ago he required 24-hour care. While this has

improved over the last twelve months he still requires a very high level of care. It is that level of care and the funding for that which

is at issue. Counsel submitted that there is a very good case against the Health Board to provide funding for care of the ward.

Counsel referred to medical opinion which was of the view that it would be better for the ward if he was kept in his home. However,

the very high level of care required of the ward over the last two years has been a severe drain both financially and physically on the

applicant. While until the accident in 1999 the ward had been mildly handicapped he now requires intensive care and much of the

payment for this has been carried by the applicant. The ward now needs about twelve hours care a day. Whereas originally leave had

been granted to apply by way of judicial review on it being recognised as a wardship matter it had come before the President of the

High Court and he had made the order under appeal. Whereas originally the applicant had been both the Committee of the Person and

the Committee of the Estate, she was now only the Committee of the ward’s Person.

Counsel submitted that the applicant as Committee of the Person of the ward was seeking permission to proceed with the judicial

review. He referred to the right to life of the ward, to the right of access to the court of the ward. Counsel disputed the President’s

determination that the proper person to bring the proceedings is the Committee of the Estate and not the Committee of the Person.

He argued that on medical evidence the ward should be kept at home but for that his carer, the applicant, needs money. That as the

Committee of the Person she was the appropriate person to seek that funding. Counsel said that whereas the applicant had a right to

proceed in her own name, that was felt too risky in view of a possible locus standi issue. He informed the court that the ward can

instruct nobody. Counsel argued that at the core of this case is a care problem, that is the issue in the case and so it is a matter for

the Committee of the Person. It is an issue for the Committee of the Person in a modern context. Factors in debate are the assets of

the ward and the policy of a Health Board as to the level of assets held by a ward or person before they would make any payments

out. Counsel pointed out that two branches of the State, the General Solicitor and the Health Board, who have a duty to look after

the ward, are in conflict in this case.

Brian Spieren, SC, counsel on behalf of the General Solicitor, said that the applicant was bringing the proceedings as Committee of the

Person of the ward. Counsel referred to Harris, Law and Practice in Lunacy in Ireland at p. 76:

“Actions are instituted or contrived by the Committee, not the Receiver, under order of the Chief Justice, unless the Committee

has a conflicting interest in which case the General Solicitor will be directed to act on behalf of the patient for the purposes of

the suit.”

Counsel on behalf of the General Solicitor pointed out that originally the applicant was both Committee of the Person and Committee

of the Estate of the ward but recently the President had appointed the General Solicitor to be Committee of the Estate of the ward.

He said that the procedure is that if it is felt that proceedings for a ward are warranted the matter would be brought to the attention

of the Registrar of Wards of Court. That in general an opinion of counsel would then be obtained and the matter would then be

brought to the President of the High Court who would make a decision, exercising his jurisdiction as carried over from that of the Lord

Chancellor. In this case proceedings had been taken without going to the President. The General Solicitor had obtained counsel’s

advice subsequent to the proceedings being instituted. That, however, the President has not yet considered the merits of the issue in

this case. When the matter was before the President the issue was procedural only. Counsel argued that it is not a matter of access

to the court, that the applicant could bring proceedings herself. That any access to the court by or on behalf of the ward would be

through the Committee of the Estate which should go through the proper proceedings before the President. He argued that the

Committee of the Person was not the appropriate person to bring such proceedings.

Mr. Felix McEnroy, SC, counsel on behalf of the Northern Area Health Board, said that the issues appeared to be:

A) Who should sue the Northern Area Health Board?

B) In what capacity should that party sue the Northern Area Health Board?

C) Who will decide who should sue the Northern Area Health Board?

He pointed out that on the 13th April, 2000, leave was granted for judicial review on the basis that there was an urgency. That on

the 2nd June these proceedings were stayed by Kelly J.. That on the 24th May the statement of grounds of opposition had been put

in. That when the matter was before the High Court the Office of the Wards of Court was not a notice party and had not had the

benefit of the opinion of counsel for the applicant. At that time Mr. McEnroy brought to the attention of the court section 9 of the

Courts ( Supplemental Provisions) Act, 1961. In view of the fact that P.K. was a ward of court Kelly J. sent the matter to the

President of the High Court. That when the matter came before the President of the High Court the President indicated the correct

procedure whereby the action could proceed, being on application of the Committee of the Estate. The President had held that the

Committee of the Person could not bring the action. At the core of this issue, he submitted, is a question of the funding for care of

the ward and assets of the ward. This brings into focus the policy of the Health Board in giving funding for the ward and its policy in

relation to any assets the Ward may have. He pointed out that the Health Board has duties and is accountable for its funding. In

addition, counsel for the Health Board drew to the attention of the court the question as to whether there was a household policy

insurance in existence which could be relevant to the care of the ward also. He queried whether if such a policy had been in

existence when he had his accident should proceedings be brought on his behalf in relation to that?

Counsel for the Health Board pointed out that he had raised the question of the jurisdiction of the High Court to proceed with the

judicial review in view of the President’s jurisdiction in relation to wards of court. He stressed again that the issues appeared to be:

1. Who should sue the Northern Area Health Board?

2. In what capacity should that party sue the Northern Area Health Board?

3. Who decides who should sue the Health Board?

Counsel for the General Solicitor pointed out that the President of the High Court had not made a decision on the merits of the action.

That whereas there has been an opinion in relation to such proceedings given to the General Solicitor and sent to the Office of Wards

of Court there has been no application to the President in relation to the issue. The court was informed that counsel’s opinion on the

merits stated that proceedings should not be advanced.

In reply Miss Hewson BL, on behalf of the applicant, pointed out that there had been an order for judicial review originally and that

that had not been proceeded with but in the meantime the family of the ward, the applicant, are burdened with the care of the ward.

That time is running out, that they do not have money to fund his care, they have modest means and they do not want to have him

go into an institution. That if he does have to go into an institution, which will be funded by the Health Board, that will in fact cost

more than his care in the home. That what was needed was to get the issue ventilated, and that issue is whether the Health Board

owes a duty of care to the ward.

6. Decision

This case has been trapped in a procedural net and should be released immediately. It is entirely inappropriate when the issue is the

care of a ward of court that a matter, which is determined as urgent in April 2000, in relation to his care is caught in a sea of

procedural argument.

This matter should be returned to the President of the High Court immediately. In his judgment of 9th June, 2000 the President

described the recognised and approved procedure for obtaining approval from the President of the High Court for the institution of

proceedings. The President held that such application should be made by the Committee of the Estate. However, the issue is the care

of the Ward. The ward is currently in his home but requires considerable care. His assets are diminishing but not yet depleted. The

applicant and her partner have been supplying much of the care of the ward. They do not wish the ward to leave his home and go to

an institution. Medical evidence supports this view. Indeed, financially it would cost less to fund him in the home rather than move

him to an institution. What the Court will have to consider is the care of the person of the ward. It is not the ownership of his house

or any other property. Law was quoted to the court as to the areas of responsibility of the Committee of the Estate of the Ward and

the Committee of the Person of the Ward. Much of this law is centuries old and reflects a different era. The language alone indicates

its antiquity and with that raises queries as to its current position. The issue of the care of the ward is a matter for the Committee of

the Person. In Theobald, The Law Relating to Lunacy, 1924, the duties of the two committees are described at p. 41 as:

“In the case of the estate of the lunatic the custody, regulation, occupation, disposition and receipt of the estate are

committed and granted to the committee of the estate.

In the case of the person, the custody of the person and the regulation and government of the lunatic are committed to the

committee of the person.”

The powers of the Committees are described at p. 49 as:

“The committee of the estate is the proper person to represent the lunatic in all proceedings in England, and a Scotch curator

has no locus standi here so long as there is a committee of the estate. R.S.A., sup.; Aytown, (1901) W.N. 165.

The committee of the person has complete control over the person of the lunatic and it is his duty to make all necessary

arrangements for his care and treatment.

The lunatic may be received into an institution, or as a single patient, upon an order signed by the committee of the person

having annexed thereto an office copy of the order appointing the committee, or, if no such committee has been appointed,

upon an order signed by the Master (Lunacy Act, 1890, s.12).

...

According to English practice, the choice of the lunatic’s residence is within the discretion of the committee of the person, but

this discretion is subject to any directions which it may be proper to give on the advice of the Chancery Visitors or otherwise.

In Ireland no such discretion is given to the committee of the person. There the Lord Chancellor himself fixes the lunatic’s

residence. Abraham, Law and Practice of Lunacy in Ireland, 173 - 175.”

The Committee of the Estate has been described as being in the position of a bailiff. In other words it is an agent or steward to take

care of the property of the ward. Modern issues of the rights of the ward of court in relation to his person were not extant when this

law was

commenced. However, such issues exist now. They are matters in the first instance for the President of the High Court. It is for the

President to exercise his jurisdiction to determine what is best for the ward. This includes decisions as to litigation. These decisions of

the President are for the benefit of the ward of court and not to exclude him from the court’s process or from access to justice.

In relation to issues of care of the ward, which includes matters such as his care at home and his well-being, I am satisfied that the

Committee of the Person has rights and duties and these may include litigation on behalf of the ward. Indeed, this is especially so if

the Committee of the Estate is taking a view which the Committee of the Person believes is having a detrimental effect on the person

of the ward. In such a conflict it is open to the President of the High Court to sanction proceedings on behalf of the ward by the

Committee of the Person. In this case the High Court (Kelly J.) has already held that there is an arguable case for judicial review.

At issue in this case is the access of the ward of court to the courts and to justice. It is not a question of the access of C-K- who at

all times can bring proceedings on her own behalf. What is at issue is not the access of C-K- but rather the right of the ward to the

jurisdiction of the court; especially the court’s protection on issues relating to his human and fundamental rights, to his care, bodily

integrity and dignity.

7. Conclusion

This matter should be brought before the President of the High Court as soon as possible.

The parties, apart from the applicant, are State bodies. It is appropriate that resolution of this matter be obtained speedily and

without further delay. The President has indicated that he would hear immediately any application regarding contemplated

proceedings. I would order that the matter be remitted to the President so that he may consider the current situation, the merits of

the issue as to whether the ward should be part of the judicial review proceedings, whether there should be separate proceedings,

indeed whether there should be any proceedings and of what type and against whom, and to give whatever directions he deems

appropriate. The President may be in a position to resolve the issue of the care of the ward without further litigation. However,

whether litigation is appropriate it is for the President to determine. Consideration may also be given to other issues raised, such as a

Household Insurance Policy and the accident of the ward. Such applications should be held in court, in camera.