Supreme Court: Son of 93-year-old woman loses application to have her released into his care

Supreme Court
Supreme Court

The son of a 93-year-old woman, who has been made a ward of court and is residing in a nursing home on the basis of medical advice, has had his application for her release into his care refused in the Supreme Court.

The man has been engaged in a multiplicity of legal proceedings in relation to his mother’s care, and he is in the process of appealing the finding that she is in lawful custody in the nursing home.

Refusing the reliefs sought in this interlocutory application, Mr Justice Donal O’Donnell said that releasing the woman into her children’s care in circumstances where she may have to return to the nursing home if the appeal is dismissed. As such, Mr Justice O’Donnell held that the balance of justice favoured maintaining the status quo.


In 2015, AC was admitted to Cork University Hospital (CUH) with a broken right hip after a fall in her home. She was released into the care of her son; however, she fell again, breaking her left hip and was readmitted to CUH. The multi-disciplinary team at CUH which was treating the woman were of the view that AC’s care needs would be best met in a nursing home on discharge. The team was of the view that she did not have the capacity to engage in discussions and decision making regarding her discharge plans.

AC’s son and daughter were of the view that AC should be released into their care, however the staff at CUH were concerned with their attitude and behaviour. Firstly, concern was raised by the fact that they had arranged for an exercise bike to be bought for AC which would likely have caused further falls and injury; AC’s daughter was also observed prodding her mother with her finger while she was out in a wheelchair, causing AC to become distressed; on another occasion, AC’s daughter covered her in cayenne pepper while she was on the ward.

AC signed a letter in June 2016 which indicated that she wished to be discharged from the hospital, and that all costs associated with her rehabilitation at the home of her son would be the responsibility and liability of CUH and the HSE. Ultimately, the care team decided that AC did not understand the implications of her own discharge against medical advice, and Gardaí were asked to provide security to assist in preventing AC’s family from removing her from the ward. In proceedings separate to the present judgment, the Court of Appeal held, on 3 June 2018, that AC’s detention in June 2016 was not lawful under Article 40.4.2 of the Constitution.

Meanwhile, in August 2016, AC was made a ward of court, and now being cared for at St Finbarr’s Nursing Home. The present proceedings taken by AC’s son on her behalf concerned an application for an inquiry pursuant to Article 40.4.2° of the Constitution in respect of her detention and care. In the High Court in August 2018, Ms Justice Mary Faherty held that AC was being detained in accordance with the law, and refused the relief sought pursuant to Article 40.4.2° of the Constitution.

In September 2018, the Supreme Court granted leave to appeal directly from the High Court.

Interlocutory application

AC’s son, PC, sought certain reliefs pending the hearing of an appeal. Delivering the judgment of the Court, Mr Justice O’Donnell noted that the present interlocutory application intervened in the matter being dealt with speedily as required in inquiries pursuant to Article 40.4.2°. As such, Mr Justice O’Donnell expressed regret at the delay caused by this motion.

The main thrust of PC’s application was for a stay on the order finding that AC was in lawful custody, and for AC to be released into his and/or his sisters care.

Mr Justice O’Donnell said that there were a number of serious objections to AC being released into their care:

  1. Ordering AC’s release from the nursing home would essentially be a mandatory order;
  2. PC appeared to be challenging the entire warship regime, which was entitled to the presumption of constitutionality, and its constitutionality had been upheld in the High Court by Ms Justice Faherty;
  3. 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 a particular scheme (as per Okunade);
  4. There was uncontradicted medical evidence that AC’s needs were best met in a residential nursing home care setting.

Even aside from all of the above, Mr Justice O’Donnell said that the balance of justice favoured maintaining the status quo – not least because of the fact that if the appeal was dismissed, and AC had been discharged in the meantime; having to be returned to the nursing home would “undoubtedly be very disruptive for a lady of her advanced years”.

Emphasising that this did not reflect any view on the merits of the appeal, Mr Justice O’Donnell refused the reliefs sought.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019

Other judgments by Mr Justice Donal O'Donnell