Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE CONSTITUTION

BETWEEN

BETWEEN

RESULT: The Court refuses to make an order allowing an appeal to this Court under Article 34.5.3 of the Constitution from the order of the Court of Appeal made on the 24th February 2017.

REASONS GIVEN:

1. Jurisdiction

This determination relates to two applications by the appellant in the underlying proceedings (“Mr. C”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., sitting as a single judge in the course of case management). The order appealed against was made on the 24th February, 2017,

As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

The appeals, which are at present pending in the Court of Appeal, concern orders of the High Court dismissing Mr. C’s challenge to the lawfulness of his mother’s (“A C” referred to as “Mrs C”) alleged detention by the health authorities; and also declaring Mrs. C a ward of court.

The first application under Article 40.4

On the 7th July 2016 Mr. C applied for an inquiry pursuant to Article 40.4 of the Constitution in respect of the alleged detention of his mother, Mrs. C, by Cork University Hospital and the Health Service Executive. Mrs. C was at that time 93 years old. The basis for the application appears to have been a belief by Mr. C that his mother was being mistreated.

The inquiry was heard by the President of the High Court on the 11th July 2016. The matter was dealt with by way of an ex tempore judgment given on the same day. The judgment refers to the affidavit sworn by the general manager of the hospital to the effect that Mrs. C had been an inpatient in the hospital since December 2015; that there was no longer any therapeutic necessity for her to be there and she was well enough to be discharged; that she lacked capacity to make an in informed decision as to where she would go upon discharge; that she had “high care needs”; and that her family had not satisfied the responsible multidisciplinary team that sufficient arrangements were in place for her care at home. It was averred that the reason for the fact that Mrs. C had not been discharged was the failure of her family, including Mr. P C, to “engage and cooperate in a reasonable way”. It was averred that a decision had been taken on the 7th July 2016 to progress an application to have Mrs. C taken into wardship.

The judgment also refers to affidavits sworn by two consultants – an orthogeriatrician and a psychiatrist – who both expressed the view that Mrs. C lacked capacity.

Kelly P. concluded that Mrs. C was not detained unlawfully in the hospital and he therefore refused to make an order for release under Article 40.4. He found that the hospital authorities wished to discharge her at the earliest opportunity provided that such discharge was consonant with her wellbeing and health. He was also satisfied on the basis of the evidence that he ought, in his capacity as successor to the Lord Chancellor as President of the High Court, and therefore having jurisdiction in wardship matters, make an order under the relevant legislation appointing a medical visitor to report independently to the court as to the capacity of Mrs. C.

Accordingly, two separate orders were drawn up. One records the finding that Mrs. C was not unlawfully detained and the other the direction that one of the Court’s medical visitors was to inquire into and report upon the state and condition of Mrs. C’s mind and her capacity or incapacity to manage her person and property.

Mr. C filed an appeal against the refusal of an order for release on the 15th July 2016.

The second application under Article 40.4

On the 22nd July 2016 Mr. C again applied to the High Court for an order directing the release of his mother pursuant to Article 40.4 of the Constitution. The inquiry was directed by Haughton J. and was heard by the President of the High Court on the 25th July.

It is not entirely clear what distinguishes this application from the previous one. However, it can be gleaned from Mr. C’s papers that there was some disagreement as to his wish that his mother should be transferred to the Mater Private Hospital in Cork

At the outset of the hearing Mr. C asked Kelly P. to recuse himself, on the basis that he had dealt with the earlier matter which was now under appeal. He refused to do so, holding that those circumstances did not give rise to any legitimate apprehension of either actual or apparent bias.

In his ex tempore judgment on the substantive matter Kelly P. referred to the earlier proceedings and the orders previously made by him. He also summarised the report of the medical visitor appointed by the Court, who stated that Mrs. C was suffering from senile dementia and that she did not have capacity to make a decision about where she should reasonably reside. She was of unsound mind, incapable of planning for her care needs, and vulnerable to exploitation by others.

Kelly P. found that Mrs. C was not in unlawful detention, although she should be transferred to another facility appropriate to her needs. She did not have capacity to make decisions in that regard. She also did not have capacity to bring the application under Article 40.4. He refused that application and directed an inquiry under the wards of court jurisdiction as to the soundness or unsoundness of mind of Mrs. C.

Again, two separate orders were drawn up reflecting the results of the application under Article 40.4 and the wardship matter.

Mr. C filed a notice of appeal on the 3rd August.

Order in the wardship proceedings

On the 19th August 2016 Kelly P., having conducted the inquiry already referred to, declared Mrs. C to be of unsound mind and incapable of managing her own person or property. He appointed Ms. Patricia Hickey, the General Solicitor for Minors and Wards of Court, to be the Committee and made the normal consequential orders.

Proceedings in the Court of Appeal

On the 13th February 2017 Ms. Hickey’s representatives filed a notice of motion in both of the appeals before the Court of Appeal, which was dealt with by Ryan P. sitting as a single judge in the ordinary course of case management.

The parties to the application for leave to appeal to this court have referred to this motion without, unfortunately, setting out the full extent of the reliefs sought by Ms. Hickey. It is clear that she looked for and obtained an order that she be added as an applicant in the Article 40.4 proceedings both in her capacity as the Committee of the applicant, who was now a ward of court, and as the General Solicitor; and that all future proceedings were to be carried on between A C and (by order) A C a Ward of Court (suing by her Committee, Patricia Hickey General Solicitor) and Patricia Hickey General Solicitor, Applicants, and Consultant Dr. J C, Cork University Hospital and the Health Service Executive, Respondents. The order recites that the “balance” of the motion was adjourned for hearing. According to Mr. C’s notice of application to this Court, the General Solicitor had also sought injunctive relief to stop him from prosecuting the appeals on behalf of his mother.

In making this order, Ryan P. described the application to be joined as “irresistible” in circumstances where Mrs. C was, “rightly or wrongly”, a ward of court. The case could not be properly disposed of without the General Solicitor. However, there were other matters raised in the notice of motion that would more properly be dealt with by the full court hearing the appeal. One of these matters appears to be a challenge by the General Solicitor to the entitlement of Mr. C to be heard in the matter. Ryan P. said that he thought it desirable to proceed on the assumption that Mr. C was entitled to act on behalf of his mother, because no other basis would be satisfactory. Since there is no reference to this in the order as drawn up, it must have been taken as the expression of a view rather than a ruling.

3. The Contentions of the Parties

The notices filed by Mr. C as “representative” of Mrs. C are available on this website, as are the notices filed by the hospital, the HSE, the consultant doctor and the General Solicitor. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

Mr. C claims that the General Solicitor intends to “dislodge” him from the appeals and then to withdraw them.

It is asserted that the process by which Mrs. C was made a ward of court was unlawful because:-

(i) Kelly P. should have recused himself from the second Article 40.4 application, being functus officio by reason of the fact that an appeal had been lodged against his first ruling;

(ii) Kelly P. should not have “intermingled” the question of wardship with the Article 40.4 issue;

(iii) Kelly P. assumed a title of nobility in describing himself as successor to the Lord Chancellor;

(iv) the affidavits sworn by HSE employees were inadmissible owing to a conflict of interest;

(v) the affidavits contained evidence unlawfully obtained from Mrs. C’s medical files in breach of her right to confidentiality;

(vi) there was no advance notice in writing to either Mrs. C or her son;

(vii) Mrs. C was in fact of sound mind and had objected in writing to the wardship inquiry, by letter dated the 4th August 2016;

(viii) pleadings in the wardship petition could not have been delivered during the Long Vacation, so Mrs. C should have had until the start of term in October 2016 to answer the petition;

(ix) there was no affidavit to prove service of the order making Mrs. C a ward, either on her or on Mr. C; and

(x) the Lunacy Regulation (Ireland) Act 1871 is unconstitutional.

(i) she applied to be joined solely for the mala fides purpose of having Mr. C prevented from speaking for his mother, and to cover up the mistreatment of Mrs. C;

(ii) Mrs. C had not consented to being represented by the General Solicitor; and

(iii) the General Solicitor had not been a party in the High Court proceedings, which pre-dated her appointment as Mrs. C’s Committee.

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established in the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

In this case, the two applications under Article 40.4 were moved on the basis of Mr. C’s unhappiness with the medical treatment being afforded to his mother. That issue, and the correctness of the two refusals of relief by Kelly P., is independent of any arguments as to the validity of the wardship process. It must be noted that no challenge to the appointment of the Committee has been brought, either in the High Court or by way of appeal against the High Court orders. Instead, the procedure adopted by Mr. C has been, in effect, to argue the lawfulness of the wardship process within the Article 40.4 appeals. He has attempted to obtain a ruling in this respect by seeking to have the General Solicitor excluded from the appeal procedure in relation to the Article 40.4 applications. However, as Ryan P. said, the wardship order was made and it subsists unless set aside. While it is in being, the General Solicitor is entitled to act on the basis that it was properly made. The argument as to the entitlement of Mr. C to maintain the appeals has not been closed off by the decision of Ryan P. and remains to be determined by the Court of Appeal. Similarly, his arguments as to the correctness of the procedures and findings of the High Court have yet to be determined. There is, therefore, no issue at present which would justify a grant of leave to appeal to this court.

These applications do not meet the constitutional criteria for leave to appeal to this Court.

5. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3 in respect of both applications.

And It is hereby so ordered accordingly.