Ms Justice Iseult O’Malley said the absence of legal aid for wardship cases is “of real concern” given the consequences of wardship and it may be necessary to appoint a court appointed guardian to protect the interests of wards.
She was giving the five judge court’s unanimous judgment granting the HSE’s appeal against a Court of Appeal (COA) decision that a general hospital acted unlawfully by preventing the elderly woman leaving there with her son in summer 2016 due to its concern discharge was not in her best interests.
The woman suffers a degree of mental impairment but not from a mental illness such as would warrant confinement under the Mental Health Act, the judge noted.
The woman was admitted to hospital in autumn 2015 after falling at home and breaking her right hip. She was discharged to her son’s home but broke her left hip in another fall and was readmitted to hospital where it was considered her needs would be best met in a nursing home on discharge.
After she signed a self discharge letter in July 2016, the hospital considered it would not be feasible to set up a care package at short notice, that she lacked capacity to decide on discharge, that she might be under pressure from others to leave, and asked gardaí to prevent her leaving with her son the following day.
The hospital had concerns about the attitude and “eccentric” behaviour of her son and daughter, including having bought their mother an exercise bike. The HSE had argued the woman was not “detained” in the legal sense.
Ms Justice O’Malley said the hospital had to consider a range of factors and, where it believed third parties were unduly pressuring a vulnerable patient, could prevent departure for a brief period while the situation is assessed.
The COA had paid insufficient attention to all evidence regarding her actual wishes and had not addressed a “fundamental” question, whether other persons were trying to remove her.
She set out various steps hospitals should take when confronted with such situations, including establishing if the patient genuinely wants to leave and, if necessary, arranging a capacity assessment. Because the woman is now in a nursing home, no formal orders will be made on that appeal.
In a separate appeal by the woman’s son, the court ruled the procedures applied to the making of a High Court wardship order for the woman in August 2016 were flawed because her fair procedure rights were not vindicated.
Because it also found that wardship proceedings remained in being despite the flaws, and the High Court thus had jurisdiction to make protective orders last year for the woman, it dismissed the son’s appeal.
The son in July 2016 sought a High Court inquiry under Article 40 of the Constitution into the legality of his mother’s hospital detention. The High Court rejected two challenges over her detention and also directed an inquiry into her capacity, leading to her being made a ward of court in August 2016 and being moved to a nursing home where she remains.
Ms Justice O’Malley said the August 2016 wardship proceedings were flawed over failure to vindicate the woman’s fair procedure rights. The notice for the wardship hearing date was too short, the woman should have been furnished with the evidence that was to form the basis for the court’s decision and should have had an adequate opportunity to challenge that, she said.
If a person cannot get legal representation, it may be necessary to appoint a guardian ad litem to protect her interests, she added.
The judge stressed, when making the disputed orders, that High Court president Mr Justice Peter Kelly was aware of the medical evidence and the woman’s circumstances. However, he had not, at that point, heard what might have been put forward on her behalf by someone who, unlike her son, was not “personally embroiled” in the situation.
It is “essential” the voice of an individual be heard in the process and, if she cannot speak for herself some person must be found, not otherwise involved in any dispute, who can speak for her.
In dismissing the son’s claims over the orders in August of last year for the woman’s move to a nursing home, the judge concluded the wardship proceedings were and still are in being having commenced with the High Court’s sending out of a medical visitor to assess the woman’s capacity. This was so despite any flaws attached to the August 2016 order, she ruled.
The High Court thus had jurisdiction to take urgent protective measures in the interests of the woman and those were “fully justified” by evidence. That meant, while the Supreme Court suggested the High Court “revisit” its August 2016 order, the son’s claim that his mother was unlawfully deprived of her liberty was not made out.
Patricia Hickey, general solicitor for wards of court, was involved in the appeals as the committee appointed to represent the woman’s interests and the Irish Human Rights and Equality Commission made submissions on the legal issues.