IESC 3 · Supreme Court

THE SUPREME COURT

Denham J.

McGuinness J.

Geoghegan J.

169/2000

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 Mr. Justice Geoghegan delivered the 19th day of January 2001

The appellant is the sister and joint committee of the person of the above-named Ward of Court. Under arrangements worked out

some years back in wardship proceedings under a former President of the High Court, the Ward lives at home with her and her

partner. The appellant’s brother is the other committee of the person. For reasons which will be explained in this judgment the Ward

now requires round the clock nursing and attention. While the appellant can contribute to these needs she is not herself a person of

private means and is in a salaried job and would, therefore, require either free assistance from or with the authority of the health

board, or the money to obtain privately such assistance. On advice from her lawyers she believes that the Northern Area Health Board

is under a constitutional and statutory duty to provide the necessary assistance, especially as all the medical advice indicates that

the Ward should remain at home. The health board, to date, has not offered to provide the necessary level of assistance. At one

stage the appellant decided to litigate this complaint herself without involving the Ward in the proceedings and she actually obtained

leave to bring judicial review proceedings against the health board by an order of Kelly J. made the 13th of April, 2000. But

unfortunately the substantive matter then got buried and lost in procedural wrangles. When the application for judicial review,

pursuant to the leave, came again before Kelly J. the health board argued that some of the grounds of relief involve the rights of and

protective obligations relating to the Ward and that that being so section 9 of the Courts (Supplemental Provisions) Act, 1961

required that these matters could not be aired and disposed of in the courts other than under the authority of the President of the

High Court or a judge assigned by him exercising wardship jurisdiction. Kelly J. accepted this submission and stayed the judicial review

proceedings pending an application to the President.

The matter then came to the attention of the President by way of notice of motion for directions brought on behalf of the appellant.

The directions sought included certain specific directions which were as follows:

“i. Assigning a judge of the High Court to hear that judicial review.

ii. The extension of the grounds of relief to include sections 60 and 61 of the Health Act, 1970.

iii. A pre-emptive order for costs against either the respondent or the notice parties.

iv. Alternatively, leave for (C.K.) to prosecute those proceedings as the Ward’s committee.

v. Such further directions as may be neat and proper, including interim provision for the Ward’s upkeep.”

The President delivered a written judgment on the 9th of June, 2000 refusing the application. This appeal is against that refusal. In

the judgment, the President expressed the view 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 the

contemplated action. Accordingly, counsel’s opinion is normally furnished”. The President then went on to say that he had indicated

to the applicant that he would immediately entertain any such application brought in that manner and that he would have expected

that such an application would have been made, but none in fact had been made to him. He considered that there were procedural

objections to permitting the appellant prosecute the judicial review proceedings as the Ward’s committee because she was not the

committee of the estate. The committee of the estate was the General Solicitor for Minors and Wards of Court. The President made it

clear that the appellant was entitled to bring her own proceedings provided that she was not involving the Ward. He also held that

there was a potential conflict of interest between the appellant and the Ward (this related to the ownership of the house) and he

further held that he did not have any function in relation to any other reliefs and especially the relief relating to the extension of

grounds for seeking judicial review.

Assuming that the President was correct in his view that any proceedings brought on behalf of the Ward would have to be brought by

the committee of the estate rather than the committee of the person, it did not follow from that that the appellant was wrong in

bringing the motion before him or that the motion should have been dismissed simpliciter. As committee of the person, she certainly

had a right of access to the President and was entitled to bring a motion before him since the matters in controversy peculiarly

related to the care of the Ward’s person rather than his property. As most of the wardship law in this jurisdiction was developed

before the independence of the State and carried over under the two constitutions, it is, I think, relevant to cite paragraph 896 of

volume 19 of the first edition of Halsbury’s Laws of England where the duty of the committee of the person is succinctly described.

The paragraph reads as follows:

“In the case of a lunatic so found, the committee of the person has the duty of fixing the residence of the lunatic, regulating

his establishment, and making provision for his maintenance.”

The footnotes cite Hope, Law and Practice of Lunacy 2nd edition 108 and Elmer, Practice in Lunacy, 180 as authority for this

proposition. Although there may have been differences between the old Irish and English jurisdictions I do not think that there was

any difference in the basic functions of the committee of the person. On that definition it would seem to me that she clearly had an

interest in making any relevant application to the President of the High Court concerning matters of care and maintenance, though in

routine matters it might be an abuse to do so without first going through the Office of Wards of Court . Where she may have gone

wrong was in seeking to continue the proceedings on behalf of the Ward in her capacity as committee of the person. I would not

even be absolutely certain of this because the case law, which determined that the appropriate person to bring proceedings is the

committee of the estate, would for the most part have related to cases concerning property. I do not find it necessary to form a final

view on that matter. There is certainly force in the argument that there is, to a certain extent, a property interest in relation to any

proceedings brought on behalf of the Ward because of at least the theoretical possibility of a liability for costs and, therefore, it may

well be that the committee of the estate is always the appropriate party. But even if the appellant was technically incorrect in the

relief that she sought, nevertheless having regard to the non-adversarial nature of wardship proceedings, I find it difficult to

understand why it was necessary to dismiss the application altogether. The committee of the estate who happens in this case to be

the General Solicitor for Minors and Wards of Court is nothing more than an agent of the President of the High Court. If the President

considered that any such proceedings would have to be brought in the name of the committee of the estate there was nothing to

prevent him so holding but then further investigating whether in fact it was in the interest of the Ward either that the judicial review

proceedings be continued for the benefit of the Ward or that completely new proceedings be brought for the benefit of the Ward. But

clearly the President seems to have taken the view that once he found that the applicant would not have been a proper party he

ought not to consider the merits of the application at all. Having regard to the very serious consequences for the Ward if the

appellant is unable to continue to maintain him in the manner in which he must be maintained it was, and still is, a matter of the

utmost urgency to consider whether there is a viable legal proceeding to force the health board to give the necessary assistance.

This court has had the benefit of seeing not just the opinion of Dr. Michael Forde, S.C. and Miss Hewson, but also a very detailed

joint opinion of Mr. Brian Spierin, S.C. and Mr. Denis McDonald on behalf of the General Solicitor for Minors and Wards of Court which

unfortunately has never been shown to the President. Both opinions, though conflicting, are very well researched and it is imperative,

in my view, that at the earliest possible moment a way be found to bring both opinions to the attention of the President and for him

to consider on its merits whether it is advisable for the Ward to be involved in the existing judicial review proceedings or whether

some form of separate proceedings should be brought or whether no proceedings at all be brought.

In the particular circumstances of this case it would be desirable that the opinions be exchanged and that the President or a judge

designated by him hear oral submissions from both counsel on behalf of the appellant and counsel on behalf of the General Solicitor.

The health board should not be represented at the hearing.

If, as I have suggested, this case is sent back to the President for consideration on the merits by him of the Ward being effectively

joined in the existing judicial review proceedings or the possibility of separate judicial review proceedings in the name of the Ward it

will be important that the President be brought up to date with relevant correspondence which has come into existence since his

order. I particularly have in mind the letter of Ms. Deirdre Smith of the Office of the General Solicitor for Minors and Wards of Court,

dated the 13th of October, 2000 to the Chief Executive Officer of the Northern Area Health Board and the reply thereto of the 19th of

October, 2000 which must give rise to some element of optimism. As the letter of the 13th of October succinctly sets out the factual

background to this case I think it useful to cite it in full. It reads as follows:

“Dear Sir

The General Solicitor for Minors and Wards of Court is Committee of the estate of (P.K.), a Ward of Court, hereinafter called

‘the Ward’ of 18 Caragh Road, Cabra, Dublin 7.

The Ward was born on the 19th of March, 1941. He sustained a head injury in 1976 which affected his mental capacity and on

the 7th of March, 1983 he was declared a Ward of Court.

The Ward is married with one son, aged about 26 years. He is estranged from his wife, (A.K.) and lives in his own home at 18,

Caragh Road with his sister, (C.K.), her partner and their son.

As the Committee understands it, the Ward appears to have done very well in this environment and to have played a part in

the household. However, in February 1999, the Ward swallowed a chicken bone that lodged in the large intestine. This led to

septicaemia and gangrene. He was admitted to the Mater Hospital and after a long period in intensive care, he returned to

Caragh Road on the 12th of October, 1999.

When he returned home he was totally blind, spoke with great difficulty, could not walk, wash, dress, feed or toilet himself

without assistance.

The Ward’s sister (together with her partner and son) was unable to cope with the Ward’s care on her own, and approached

the Health Board for assistance. The Health Board indicated that some assistance was available from the Irish Wheelchair

Association which was prepared to fund twenty to thirty five hours of professional care per week. Under the Home Care

Attendance Scheme operated by the Health Board, a further one to five hours per week was available from the Public Health

Nursing Department to assist in the personal care of the Ward. In addition there was a further Health Board home help service

which provides personnel for one to five hours per week to assist in domestic activity.

However, these services are not sufficient to provide the type of round the clock care, which the Ward requires. The Ward’s

sister and her partner have engaged the services of private carers, but the cost of care runs to approximately £750.00 per

week. The Ward’s sister estimated that at present, the Ward requires some 108 hours of privately funded professional care

from persons with nursing skills and a further thirty hours from lay carers who would be involved in domestic work and

socialising. Obviously, the funded care available from the Health Board and the Irish Wheelchair Association would not be

sufficient to meet these expectations.

The Ward’s funds in court are very limited and would be insufficient to discharge expenses at the level of approximately

£750.00 per week.

The matter has been raised with the Northern Area Health Board through (Ms. K’s) solicitors, MacGeehin and Toale. The

Committee understands that the Health Board has suggested that in the circumstances the Ward should be taken into

residential care but that no guarantee has been given by the Health Board that it would fully fund nursing home care.

I enclose herewith for your reference, sent on a confidential basis, a copy of the most recent medical report in the

Committee’s possession regarding the Ward, being a medical report from Dr. Mark Delargy, consultant in rehabilitation

medicine, dated June 2000. You will note that Dr. Delargy is of the view that it is in the Ward’s best physical, cognitive and

quality of life interests to be cared for at home. Dr. Delargy goes on to state that, in his view, the current care provided by

the Ward’s sister and the home help service has been instrumental in improving Mr. K.’s quality of life.

The purpose of this letter is to call upon the Northern Area Health Board to give individual consideration to the Ward’s individual

circumstances and needs and to request the Health Board to confirm that the Board will be in a position to fund the level of

care and support required in order to maintain the Ward in his home environment.

Yours faithfully”

Up until that point all correspondence coming from the health board had indicated that the Board could not fund the home care apart

from making a minor contribution and as is pointed out in the letter they were not able to guarantee residential care either. However,

when the matter goes back to the President he may well take the view that a change of attitude can be detected from the letter of

the 19th of October, 2000 which was written in reply to the letter above cited. The reply read as follows:

“Dear Ms. Smith,

I wish to acknowledge receipt of your letter dated 13th of October re the above.

I have noted the points raised. It is our policy to keep people in their own home for as long as possible and I am sure we can

agree a satisfactory solution with P.K. and his sister and her household about his future needs.

Mr. John Lamont, my Assistant Chief Executive, will contact Ms. C.K. in this regard as quickly as possible.

Yours sincerely”

Having regard to the dire needs of the Ward it is of the utmost importance that the President should urgently consider all aspects of

the case as to whether in all the circumstances the Ward should be involved in litigation with the health board. I would, therefore,

allow the appeal and order that the matter be remitted to the President of the High Court with the intent that he would consider both

the merits of the case and the appropriate procedures within the framework of this motion and then make whatever directions that he

sees fit accordingly.

There is just one other matter to which I think I should refer even though it was not relevant to this appeal. Counsel for the Health

Board in the course of his submission speculated as to whether there might have been a house policy of insurance covering a liability

(if any) to the Ward for the chicken bone accident. I think it proper to mention it as it may be an additional factor which the

President may want to investigate and consider.