Appeal dismissed because abuse at private hospital was not at a scheduled institution under the 2002 Act.

THE COURT OF APPEAL

Court of Appeal No. 2014/368

[Article 64 transfer]

Kelly J.

Hogan J.

Edwards J.

BETWEEN/

J.G.H.

APPLICANT/RESPONDENT

- AND -

THE RESIDENTIAL INSTITUTIONS REDRESS REVIEW COMMITTEE

RESPONDENT/APPELLANT

- AND -

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD

NOTICE PARTY

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of December 2015

1. I have had the opportunity of reading in advance the judgment which Kelly J. has just delivered. I entirely agree with his analysis,

but I would wish to offer some comments of my own.

2. The appalling treatment of generations of children who were ill-treated and abused in residential institutions is, unfortunately, all

too well documented. The accounts of sexual abuse, neglect and maltreatment continue to resonate within the judicial and political

systems even to this day. But the sorry events disclosed by the facts of the present case reveal a hitherto unexplored and, to some

extent, undocumented, catalogue of abuse of children within a clinical setting.

3. The evidence in this case shows that the applicant, Mr. H., was detained in St. Gabriel’s Hospital, Cabinteely for almost two years

between the ages of approximately 2 years and 4 years. He was detained again for another year between September 1964 and

September 1965 between the ages of 4 years and 5 years.

4. The applicant was referred to St. Gabriel’s Hospital from The National Children’s Hospital, Harcourt St., Dublin 2 by Dr. Monica Lea

Wilson. Dr. Lea Wilson was a consultant paediatrician attached to the National Children’s Hospital, but it also seems that for many

years she was the only clinician attached to St. Gabriel’s which she appears to have operated as a private hospital under her own,

unsupervised, personal direction. Like Kelly J., I have found the article written by Professor O. Conor Ward, “Rheumatic Fever in

Ireland: the role of Dr Monica Lea-Wilson” 21 Journal of Medical Biography 12 (2013) (and which was exhibited in these proceedings)

of immense value in terms of piecing together the complex picture of what happened to the children who were referred to St.

Gabriel’s. Save where indicated, all further otherwise unreferenced quotations in this judgment are derived from this article.

5. It is, perhaps, nevertheless only fair to state that, given the nature of the application to the Board and the ensuing judicial review

proceedings, the Court has, in reality, effectively heard only one side of the story. It may be that others who worked or who were

treated at St. Gabriel’s might, if afforded the appropriate opportunity, be in a position to paint a different picture of this hospital. The

task of fact-finding is, in any event, complicated by the sheer lapse of time between the events giving rise to this complaint to the

Residential Institutions Redress Board (and, by extension, these proceedings) and the present day. Nevertheless, all the evidence

available to the Board (and, on appeal, to the Committee) would appear to corroborate Mr. H.’s version of events.

6. St. Gabriel’s was opened in May 1951 by His Grace, Archbishop McQuaid, who “had been the moving force behind the development

of the hospital.” Archbishop McQuaid had tendered an invitation to a French nursing order, The Daughters of the Cross, to run St.

Gabriel’s. It nevertheless appeared that The Daughters of the Cross “were involved in work of which they had no experience” and

they followed “a regimen of clinical management laid down by Dr. Lea Wilson.” Furthermore, “annual reports were not published” by St.

Gabriel’s and “the principles of clinical management employed [there] never emerged in the public domain.” Dr. Lea Wilson was never

subject “to any system of peer review.”

7. The regime involved complete bed rest for the young children who had been referred to St. Gabriel’s. After a protracted period –

sometimes months - the children were allowed a half an hour out of bed, which in turn was periodically extended. As it happened, any

patient:-

“breaking the rules was put back on complete bed rest to begin the whole process all over again, sometimes in complete

isolation.”

8. The consultant paediatric cardiologist retained to prepare a medico-legal report in June 2013 the case of Mr. H., Dr. Elliott A.

Shinebourne, regarded this as a “most damning indictment of the treatment employed by Dr. Lea Wilson”, as the use of bed rest as a

form of punishment “if a child broke certain rules has nothing to do with medical care but [was] an abuse of her position of authority.”

9. Judged by the surviving medical records of Mr. H., it would appear that this process of extensive bed rest was achieved by the

widespread use of sedatives such as phenobarbitone. Mr. H. also maintains that he was force fed and subjected to terrifying ordeals

such as being hung upside down by nurses through a window and being swung “like a pendulum.” If true, Mr. H.’s account – and I

have no reason to doubt it – would be deeply alarming.

10. It is also clear from Professor Ward’s article that the majority of the children who had been referred to St. Gabriel’s were not in

fact suffering from rheumatic fever at all, but were rather fundamentally healthy children who from time to time had suffered from a

variety of childhood ailments causing them to be admitted in the first instance to the National Children’s Hospital (and, in a minority of

cases, other paediatric teaching hospitals in Dublin). So far as Mr. H. is concerned, Dr. Shinebourne agrees that it was very likely that

he never had rheumatic fever, even though he was apparently twice mis-diagnosed with this condition by Dr. Lea Wilson. Once

admitted, however, to the National Children’s Hospital these patients were then vulnerable to being referred to St. Gabriel’s at the

instigation of Dr. Lea Wilson following a diagnosis of rheumatic fever.

11. By the early 1960s it appears that the activities of Dr. Lea Wilson were causing alarm among the medical community. One

concerned general practitioner concluded that his patient was not suffering from rheumatic fever at all, but he was concerned that

she instead had developed deformed feet from bed sores and lack of exercise at St. Gabriel’s. This led to nineteen sets of parents

withdrawing their children from St. Gabriel’s, none of whom, it would appear, were found on further examination to have had any

“clinical evidence of rheumatic fever” and that was apparently confirmed by a paediatric cardiologist. Some of the children, had,

however, developed psychiatric disturbance as a result of the treatment regime at St. Gabriel’s and they were referred for psychiatric

follow-up.

12. So concerned was the medical community in the wake of the withdrawal of the nineteen patients that a group of international

experts on rheumatic fever addressed a letter to Dr. Lea Wilson expressing concerning about the treatment regime. Dr. Lea Wilson

apparently responded by stating that the experts “clearly knew nothing about rheumatic fever.” The number of patients attending the

hospital then declined to unviable proportions and it closed down in 1970.

13. It would be easy by modern standards to be critical of Dr. Lea Wilson. It is clear, however, from the medico-legal report prepared

by Dr. Elliott A. Shinebourne in June 2013 that the regime in St. Gabriel’s would not have been condoned “by any responsible

paediatrician or paediatric cardiologist at that time.” In truth, what had started off as a charitable and worthwhile project with

benevolent objectives, appears subsequently to have strayed from the standards of acceptable medical and paediatric care, even

judged by the prevailing medical standards of the day.

The Residential Institutions Redress Board Act 2002

14. As Kelly J. has pointed out in his judgment, there are three salient features of the Residential Institutions Redress Board Act 2002

(“the 2002 Act”) which govern the outcome of the present appeal. First, the child must have suffered abuse as defined by s. 1 of the

2002 Act. Second, the abuse must have taken place while the child was resident at a scheduled institution: see s. 7 of the 2002 Act.

Third, if these criteria are satisfied, s. 7 of the 2002 Act provides that the Board must make an award. The scheme of the 2002 Act is

accordingly governed entirely by statute and by the relevant principles of statutory interpretation and there is no room at all for

importing principles which might apply, for example, in an action at common law for medical negligence.

15. The difficulty so far as the applicant is concerned is that, as respects the stay in St. Gabriel’s, he can satisfy only the first of

these criteria and not the second. St. Gabriel’s is not and never was a scheduled institution for the purposes of the 2002 Act.

16. Nor is s. 1(2) of the 2002Act is any assistance to Mr. H. since it deals with the particular situation of where the child who is

resident in the scheduled institution happens to be abused outside of that institution by a person associated with that institution. So

if abuse occurred, not in that institution:

“but while the child was residing or being cared for in that institution and the abuse was committed or aided, abetted,

counselled, procured or otherwise contributed to by an act or omission of a person engaged in the management, in the

management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or

associated with the institution”

then the entitlement to recover is nonetheless established. In the present case, however, Mr. H. was not “resident or being cared for

in a scheduled institution” within the meaning of this sub-section when the abuse in St. Gabriel’s took place.

Conclusions

17. I agree with Kelly J. that, accordingly, this Court has simply no option but to allow the appeal from the decision of Kearns P. in the

High Court. I do so on the sole basis that the abuse in respect of which Mr. H. (most understandably) seeks compensation did not

occur at a scheduled institution. While it is true that, as the Supreme Court pointed out in O’G v. Residential Institutions Redress

Board [2015] IESC 41, the 2002 Act is a remedial statute which should be interpreted liberally, this does not empower this Court to

depart from the key jurisdictional parameters prescribed by the Oireachtas (namely, that the right to compensation is confined to the

scheduled institutions) and to interpret the legislation in a manner which is contra legem.

18. I cannot say that I arrive at this conclusion with any enthusiasm. As Kelly J. has pointed out, the result of this conclusion is that

Mr. H. will not receive the compensation in respect of the abuse he endured while at St. Gabriel’s to which he would otherwise have

been entitled had St. Gabriel’s itself been a scheduled institution.

19. As I have endeavoured to point out elsewhere in this judgment, this is not some purely technical restriction, but rather reflects a

legislative policy that purely private institutions such as St. Gabriel’s which were not subject to a State inspection regime were not

within the scope of the 2002 Act. It seems probable that the Oireachtas was not aware of the abuses which apparently occurred at

St. Gabriel’s Hospital at the time when the 2002 Act was enacted. In the light of the revelations regarding St. Gabriel’s which have

come to light as a result of this case it may be that the Oireachtas would wish to consider the matter afresh. If so, this, however, is

entirely a policy matter for the Oireachtas in which the courts can have no role or voice.

20. While sharing entirely the sympathy for the plight of Mr. H., which Kelly J. has already expressed in this judgment, for the reasons

just stated, I nonetheless find myself coerced to allow the appeal.