Supreme Court refuses interim release of ward pending appeal, upholding status quo due to balance of justice.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2018:000126

O’Donnell J.

MacMenamin J.

O’Malley J.

Between/

A.C.

Applicant

AND

Karen Fitzpatrick, Director of Nursing at

St Finbarr’s Nursing Home, the Health Service Executive, and

Comyn Kelleher Tobin Solicitors

Respondents

Judgment of O’Donnell J. delivered the 20th day of December 2018

Introduction

1 This is the court’s ruling on an interlocutory application brought on behalf of the applicant, A.C., by her son, P.C., seeking certain

reliefs pending the hearing of an appeal in this matter. In order to understand what is in issue on this application, it is necessary to

briefly set out what is in issue in the proceedings, since there has been a multiplicity of pleadings and judgments arising out of the

dispute between P.C. and his sister as to the manner in which their mother has been dealt with by the HSE over the past three years.

On 16 July 2018, the High Court (Kelly P.) made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 that

the ward of court, A.C., should not be identified and for that reason the parties are anonymised in this judgment.

2 On 31 July 2018, P.C. made an application for an inquiry pursuant to Article 40.4.2° of the Constitution in respect of the detention

and care of his mother, A.C., in St. Finbarr’s Nursing Home, Cork. On that date, the High Court (Faherty J.) directed an inquiry into

her detention in St. Finbarr’s, and also directed the respondent to certify the basis of her detention. The substantial litigation

background, involving a number of prior Article 40 applications, a decision of the High Court, and decisions of the Court of Appeal, are

helpfully set out in the judgment of the High Court (Faherty J.) delivered on 3 August 2018 ([2018] IEHC 570). The order of Faherty J.

of 3 August 2018 recorded that the court was satisfied that the return to the order of 31 July 2018 was good and sufficient, that the

applicant, A.C., was being detained in accordance with law, and that the court ordered accordingly. The schedule to the order

contained a certificate of detention signed by the general manager of St. Finbarr’s Hospital, Douglas Road, Cork, stating the grounds

of A.C.’s detention to be the order of the High Court (Kelly P.) of 23 July 2018 appended thereto. The order of the Kelly P. of 23 July

2018 was an order made under the wardship jurisdiction on the basis that A.C. had been made a ward of court by order of the High

Court on 19 August 2016. The order made on 23 July 2018 contained a number of injunctions and ancillary orders, and included, at

para. 2 thereof, an order that A.C. was to remain an in-patient at St. Finbarr’s Hospital, Douglas Road, Cork pending further order of

the High Court.

3 By determination of 11 September 2018 ([2018] IESCDET 125), the Supreme Court granted leave to the applicant to appeal to this

court directly from the High Court pursuant to the provisions of Article 34.5.4° of the Constitution. The determination recited the

history of the case and recorded that P.C. had suggested that there were a number of material factual errors in the High Court’s

judgment. It also recorded that “[b]roadly speaking, Mr. C. argues that wardship procedure does not offer sufficient safeguards in the

context of the detention of persons allegedly suffering from a mental disorder”. Paras. 19 to 21 of the determination bear repetition:-

“19. However, for the purposes of clarity, it must be noted that leave is now being given solely to permit an argument to

be put forward to the effect that Mr. C. may, in the context of the Article 40 application, challenge the validity of the

orders made in the wardship proceedings on the grounds that such orders are said not to have been made in accordance

with fundamental rights guaranteed by the Constitution or in circumstances which are incompatible with legally binding

obligations under the European Convention on Human Rights. The grounds to be pursued on the appeal will require to be

confined within the parameters thus described. It will be for the case management judge to ensure that the written

submissions filed in accordance with the Rules of Court and the statutory practice direction are so confined.

20. In addition, the Court would wish to record that, at present, there is in place an order of the High Court which is, on

its face, valid and which justifies the continuing detention of Mrs. C. Obviously the focus of the appeal for which leave is

hereby granted will be to determine whether those orders of the High Court can stand but unless and until those orders

are overturned there remains a prima facie valid basis for the continuing detention of Mrs. C. While the appeal will,

therefore, arise in the context not only of those wardship orders but also in the context of the Article 40 application, it is

clear to the Court that the focus of the appeal must be on the validity of the wardship orders, for unless those orders can

successfully be challenged there will remain a valid basis for the continued detention of Mrs. C. and thus no jurisdiction to

make an order under Article 40.

21. Finally, having regard to the urgency of the matter, the Court will direct that any notice of intention to proceed be

filed not later than Friday 14th September with written submissions on behalf of Mr. C. to be filed by the 21st September.

Thereafter, the respondents must file their replying submissions not later than Friday 5th October. On the basis that

those time limits are complied with the matter will be put in for case management in the week commencing Monday 8th

October. It will be for the case management judge to consider how best to progress this appeal in the light of the

impending decision of this Court in the McM case which may at least have some bearing on the legal issues which are

likely to arise on this appeal. The case management judge may also have regard to the progress of the issue which is to

be decided in the Coleman & Anor v. Clohessy proceedings.”

4 An application for an inquiry pursuant to Article 40.4.2° is a matter which requires to be dealt with speedily, and it is apparent from

the terms of the determination that it was envisaged that there could and should be an early hearing of the appeal in this case. Steps

were taken in the determination to abridge time so that the case could proceed to an early hearing. However, this motion has

intervened.

The present application

5 On 28 September 2018, the applicant issued an “application for a Stay and other injunctive reliefs” grounded upon his own affidavit.

The orders sought by the applicant are as follows:-

“(1) Stay on the High Court Order (2018/970 SS) of Ms. Justice Faherty 3 of August 2018 having appended to it

Certificate of Detention dated 31 July 2018 having Order of President Kelly 23 July 2018 (WOC 8900) appended thereon

(2) Stay on High Court Order (WOC 8900) of President Kelly 16th July 2018 as Appended to Certificate of Detention dated

20th July 2018 signed by Ber Power

[This, it should be noted, is a separate certificate of detention and High Court order]

(3) An interlocutory injunction restraining the HSE from applying for and procuring pursuant to the provisions of the

Lunacy Regulations (Ireland) Act 1871 as cited in Sec. 9 of the Courts Supplemental Provisions Act 1961, Interim orders

and Interlocutory Orders against the life, liberty, health, welfare, and privacy of [A.C.] without advance notice, due

process of law protection, and natural justice

(4) An interlocutory injunction restraining the HSE from applying for and procuring pursuant to the provisions of the

Lunacy Regulations (Ireland) Act 1871 as cited in Sec. 9 of the Courts Supplemental Provisions Act 1961, Interim orders

and Interlocutory Orders against the liberty, health, welfare, freedom of speech, and privacy of [V.C.], and [P.C.] without

advance notice, due process of law protections, and natural justice

(5) An interlocutory injunction restraining the General Solicitor for Minors and Ward of Court from applying for and

procuring pursuant to the provisions of the Lunacy Regulations (Ireland) Act 1871 as cited in Sec. 9 of the Courts

Supplemental Provisions Act 1961, any Orders against [V.C.], [P.C.], or against the life, liberty, health, welfare, and

privacy of [A.C.] without advance notice, due process of law protection, and natural justice

(6) An interim or interlocutory injunction restraining the Wards of Court Registrar and the General Solicitor for Minors and

Wards of Court, and the Successor to the Lord Chancellor President of the High Court Mr. Justice Kelly, and/or any

provisions of the Lunacy Regulation (Ireland) Act 1871 as cited in Sec. 9 of the Courts Supplemental Provisions Act 1961,

and Order 67 RSC, until the questions raised and issues surrounding the constitutionality of the aforementioned acts, and

their incompatibility with the European Convention on Human Rights Act 2003 is finally decided

(7) An order pursuant to the inherent powers of the Supreme Court to fashion a remedy for the release of [A.C.] from

830+ days of unlawful detention in the custody of the HSE managers in HSE facility of St. Finbarr’s Nursing Home, Cork, to

return the home of her [s]on [P.C.], until determination of the appeal proceedings extant before the Supreme Court herein

(8) An order in the interests of justice and humanity that sets aside [A.C.]’s detention pursuant to the provisions of the

Criminal Justice Act 1961 as cited in the Judgment of Ms. Justice Faherty spoke and recorded on the 3rd August 2018

(9) an order for Costs.”

6 Affidavits have been exchanged and written submissions delivered by the parties. At the hearing of the motion, P.C. made oral

submissions. In the course of those submissions, the argument focussed on the relief sought at para. 1 of the notice of application by

way of a stay on the order of Faherty J. of 3 August 2018, and also on the request at para. 7 for the court to “fashion a remedy” to

permit the release of A.C. into the care of P.C., pending the hearing of the appeal herein. First, it was said that there was an error at

para. 66 of the judgment of the High Court (Faherty J.), in which she referred to the order of Kelly P. being made on the 23 July 2018

“in the exercise of his jurisdiction as conferred under s. 9(1) of the Courts of Justice Act 1961”. This, P.C. said, is a statute which is

not on the Statute Book and does not exist. There was an opportunity to correct any errors in the judgment and it was not taken. In

addition to this point, P.C. also argued that s. 1 of the Courts of Justice Act 1924 had not been commenced, and that the National

Archives only had a draft of the commencement order and not the actual order. This, he said, meant that the courts did not have any

wardship jurisdiction. Furthermore, he argued that Kelly P. should have recused himself on 23 July 2018, since that was, in effect, an

appeal against his own order. In relation to the relief sought, he relied on the principle of family reunification, and said the case was

close to a recent decision of the U.S. District Court for the District of Connecticut of 13 July 2018 granting habeas corpus and an

injunction in respect of two children separated from their parents crossing the southern border of the US (J.S.R. v. Sessions (No.

3:18-cv-01106-VAB) (D.Conn.)).

7 It is apparent that these arguments tend to address the substantive issue on the appeal, that is, the correctness of the decision

that A.C. was validly detained pursuant to orders made in the wardship jurisdiction. The arguments advanced also bear little relation

to the issue identified in this court’s determination.

8 It was submitted on behalf of the HSE that the approach to be applied when an application for a stay or interlocutory relief was

sought in proceedings challenging the validity of matters in public law was that set out at p. 193 of the judgment of Clarke J. (as he

then was) in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152. While that case concerned an application for a stay

on an interlocutory injunction in the context of judicial review proceedings, in C.C. v. Minister for Justice and Equality [2016] IESC 48,

[2016] 2 I.R. 680, Clarke J. also confirmed at p. 698 that the same principles applied to an application for a stay pending the

determination of appeal. The principles set out in Okunade are as follows:-

“(a) the court should first determine whether the applicant has established an arguable case; if not the application must

be refused, but if so then;

(b) the court should consider where the greatest risk of injustice would lie. But in doing so the court should:-

(i) give all appropriate weight to the orderly implementation of measures which are prima facie valid;

(ii) give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme

in which the measure under challenge was made; and,

(iii) give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would

heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution

of the proceedings;

but also,

(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under

challenge in circumstances where that measure may be found to be unlawful.

(c) in addition the court should, in those limited cases where it may be relevant, have regard to whether damages are

available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an

undertaking as to damages; and

(d) in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or

complex questions of law, the court can place all due weight on the strength or weakness of the applicant’s case.”

9 It is clear that P.C. is firmly convinced that the continued treatment of his mother is both against her will and damaging to her

health. He has exhibited recordings of telephone conversations with his mother which suggest that she is not incapable of expressing

her wishes and has a desire to go home. He is also strongly of the view that the medicine and drugs being administered to her are

harmful to her health.

10 In these proceedings, the respondent was prepared to accept that, since leave to appeal had been granted to the applicant,

there was an arguable issue to be tried, and therefore the issue turned on the balance of justice. In that regard, the respondents

relied, in particular, on affidavits submitted in reply to the applicant’s motion, including an affidavit of a consultant physician who

exhibited a report dated 9 November 2018. That report recorded that A.C., who is now 96 years of age, had been a resident of the

nursing home since 14 December 2016, had been diagnosed with epilepsy in 2010, and was at severe risk of seizures if she did not

take her anti-seizure medication on an ongoing basis. She was at high risk of recurrent seizures which could develop into status

epilepticus, which is a state of continuous seizure activity. That, in turn, could result in aspiration, pneumonia or death. She had

additionally been diagnosed with dementia associated with psychotic features, and had been made a ward of court due to limited

ability to return to independent living and concerns about her well-being. In the view of the consultant physician, she continued to

lack the mental and decision making capacity to decide on her residence due to moderately advanced dementia, and it was the view

of the physician that in light of her significant physical care needs and complex medical conditions “her care can only be met in a

supervised nursing home environment”. Concern was expressed at the prospect of A.C. being released into the care of P.C. and/or his

sister, V.C. It should be said that P.C. objected to this affidavit on the grounds that it had been sworn after the decision of the High

Court (Faherty J.) which is the subject matter of this appeal, and furthermore, was evidence from a consultant physician retained by

the HSE against whom complaints had been made to the Medical Council, seemingly in connection with this matter. It was said,

therefore, that she was conflicted and could not give evidence.

Decision

11 It is regrettably apparent that there has been little engagement between the arguments advanced by P.C. and those advanced on

behalf of the HSE. This is due, it appears, to misapprehensions on P.C.’s part as to the scope of the jurisdiction of the court on an

application such as this, and the factors to be considered. It is also unfortunately clear that there is a comprehensive breakdown in

any relationship between PC and his sister on the one hand, and the HSE and medical staff caring for Ac on the other, to the point

where virtually everything is contested between them. At a fundamental level PC and his sister firmly believe that the care provided

to AC is positively harmful to her, while on the other hand the HSE considers it is in her best interests, and expresses concern at the

possibility of Ac being released into the care of her children. All of this has given rise to a plethora of applications affidavits and

appeals. However, it is apparent that the underlying contentions cannot be resolved on this motion, pending a hearing of the appeal

itself. It is apparent that P.C. places heavy reliance on what he considers to be legal arguments establishing the invalidity of the

process. However, it is in the nature of an interlocutory motion that, unless there is no dispute on the facts, the court cannot

determine the issues of fact and law that are the subject matter of the proceedings or the appeal, as the case may be. That is, after

all, the function of the hearing itself. The purpose of any interlocutory proceeding is to make orders pending the final hearing on the

assumption that the merits of the issue will be dealt with at that hearing. It is only rarely that a court will attempt any assessment of

the strength or otherwise of an appeal. It is, moreover, undesirable that this court should express views on the substance of the

appeal, which is due to be heard soon. The application must be approached, therefore, on the basis that it cannot be said, on the

one hand, that the appellant’s appeal is without merit, but nor can it be said, on the other hand, that it is bound to succeed. There is

an extant appeal, and the only question is how the situation should stand pending the court’s determination of that matter. This

inevitably leads to a consideration of the balance of convenience and the balance of justice.

12 In this regard, P.C.’s objections to the affidavit of the consultant physician are misplaced. The evidence adduced does not go to

the question of whether or not the judgment of Faherty J. of 3 August 2018 was correct: rather, it addresses the question, common

on any interlocutory application, of A.C.’s present condition and circumstances. The question for this court is how matters should

stand in relation to the care and custody of A.C. at the moment, that is, in the period between the lodging of the appeal and its

determination. Evidence directed towards that issue is plainly admissible, and, moreover, is regularly admitted. In those

circumstances, while it is clearly the case that PC takes vigorous issue with what is sworn to by the consultant physician it must be

noted that no contrary medical evidence was adduced by P.C. Again, it is not the case that a witness is conflicted and cannot

properly give evidence merely because they are a professional person employed by one of the parties. Similarly, the fact, if it be such

(given that there was no sworn evidence in this regard), that a complaint has been made to a professional body in relation to an

individual witness does not disqualify that witness, or render his or her evidence inadmissible in itself. That is particularly so in this

case where it appears (and, again, there was no direct evidence on this) that the complaint was made by P.C., and relates to the

very substance of these proceedings. In an appropriate case, such matters, if raised and established, may go the credibility of a

witness, or the weight to be placed on their evidence, and might allow the opposing party to contend that the evidence of that party

should be preferred. However, in this case, as already observed, there is no contrary medical evidence on the condition of A.C., and

for the reasons set out above, there is no reason to disregard, at least at this interlocutory stage of the proceedings, the sworn

evidence of a consultant physician presently involved in caring for A.C.

13 The application for a stay pending the hearing of this appeal gives rise to some conceptual problems. The order sought to be

stayed here is an order finding that A.C. was in lawful custody. If that order was stayed, the effect would not be to allow A.C. to

leave the nursing home and to go to live with P.C. The final determination by the High Court would be stayed, but this would not

invalidate or undermine the order of the High Court (Kelly P.) of 23 July 2018. Even if P.C.’s claim had merit, therefore, such a relief

could not be granted, since it would achieve nothing.

14 In substance and reality, therefore, this is an application for an order pending the hearing of this appeal directing that A.C. should

be removed from the care of the nursing home, and permitted to live with P.C. and/or his sister. That is clearly the outcome sought

by P.C. on this application. There are a number of serious objections to such a course.

15 First, the release of A.C. from the custody of the nursing home is, in effect, a mandatory order granting the relief sought on the

appeal pending the hearing. A court will normally be slow to grant an applicant such relief unless it is convinced the appeal must

succeed, or that there are other compelling reasons to do so. Second, the applicant’s challenge appears to be, to the entire wardship

regime. However, insofar as that is dependent upon a post-Constitution statutory provision, it is entitled to the presumption of

constitutionality. Moreover, its constitutionality has been upheld (insomuch as it was challenged) in the High Court judgment appealed

against. Furthermore, as set out in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152, the court should give

significant weight to the orderly implementation of measures which are prima facie valid, and to the public interest in the operation of

the particular scheme. There are, moreover, compelling circumstances in this case. There is medical evidence, not contradicted by

any opposing medical or expert witness, that A.C.’s needs are best met in a residential nursing home care setting.

16 But even if these matters are disregarded, the balance of justice here appears to favour maintaining the status quo. A.C. has been

in the care of the HSE since late 2015, and has been in this nursing home for almost 2 years. It is likely that the appeal could be

heard within a short period, and indeed might well have already been heard, or at least listed for hearing, had this interlocutory

application not been brought. The period of any continued residence at the nursing home, or any temporary release from it, would be

quite short relative to the time that A.C. has already spent in the care of the home. If the court now required A.C. to be discharged

into the care of P.C. pending the hearing of the appeal, and the appeal was dismissed, then she would have to be returned to the

nursing home. The whole process would undoubtedly be very disruptive for a lady of her advanced years. In such circumstances, it is

a counsel of prudence to be slow to disrupt the status quo, on what might transpire to be a temporary basis. If the appeal is allowed,

A.C. can then be released, if that is the outcome of the case, and the court may then address whether any ancillary orders should be

made.

17 In my view, when the application is approached, as it must be, by reference to the balance of justice and the balance of

convenience, the factors overwhelmingly favour A.C. remaining in the nursing home in the care of the HSE pending the hearing of this

appeal. That is not to express any view on the merits of the appeal, merely to address the net question of whether the court should

order AC to be moved pending the hearing of the appeal. The concerns that P.C. and his sister undoubtedly have as to the legal basis

for her continued care by the HSE, can best be addressed by an early hearing of the appeal. That was what was envisaged when

leave to appeal was granted, and remains the most appropriate vehicle to address the legal claims made by P.C. Regrettably, the

process has only been delayed by this motion. Accordingly, I would refuse the relief sought.