Court of Appeal: Cork University Hospital acted unlawfully in preventing 93-year-old woman from being released

About this case:

• Judgment:
  External link
• Judge:
  Mr Justice Gerard Hogan

The multi-disciplinary team at CUH which was treating the woman after she had broken both of her hips, were concerned about the behaviour of the woman’s family and therefore advised against her being released into her care. While emphasising that it was clear that CUH, its staff and clinicians all were at all material times devoted to the care of the woman and at all times acted in her best interest, Mr Justice Gerard Hogan said that it did not have the power to detain her, and therefore her detention was not lawful under to Article 40.4.2 of the Constitution

Background

In October 2015, Ms AC, was admitted to CUH with a broken hip. In early 2016, AC refused to leave hospital and her discharge was deferred until she was released to her son in December 2015. Unfortunately, AC fell again and broke her other hip, and was readmitted to CUH.

In CUH, AC was treated by a multi-disciplinary team (MDT) who were of the view that she did not have the capacity to engage in discussions and decision making regarding her discharge plans.

From early 2016, AC was largely bed bound, variably incontinent, at significant risk of pressure sores, and required full assistance with the activities of daily living.

Covered in cayenne pepper

AC’s son and daughter were of the view that AC should be released into their care, however the MDT and social work department 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.

Justice Hogan said that it was therefore readily understandable “that the MDT had real concerns about the rather eccentric behaviour of the family members and how the latter’s plans for the care of their mother post-discharge appeared at times to be somewhat divorced from reality”.

Discharge against medical advice

AC’s son was of the opinion that the HSE would be responsible for his mother’s care needs upon release; to this effect, 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 Gardai were asked to provide security to assist in preventing AC’s family from removing her from the ward.

Thereafter, AC’s son made two applications to the High Court pursuant to Article 40.4.2 of the Constitution for an enquiry into the legality of what he contended was the detention of his mother. President Kelly refused both applications, however it was directed that pursuant to s. 11 of the Lunacy Regulations Ireland Act 1871 that a medical visitor be appointed to report to the High Court as to the capacity of AC to make any decisions concerning her welfare or her property. This process culminated in a decision to take AC into wardship in August 2016.

Court of Appeal

AC’s son then appealed to the Court of Appeal against the High Court decisions to refuse the Article 40 applications. Justice Hogan said that the appeal was “fundamentally concerned with whether a hospital or other institution can refuse to permit an elderly patient to leave the institution in question on the basis that it considers that she lacks the capacity make a valid request to be permitted to leave, it is clear that it raises legal and constitutional issues of far reaching importance regarding the care and welfare of the infirm elderly”.

Regarding whether the hospital was entitled to detain AC, Justice Hogan said that it was an unpleasant question to ask, but was satisfied that AC in being prevented from leaving was as a matter of law and in fact detained by the hospital. Regarding whether the detention was lawful, it was held by President Kelly in the High Court that the decision was made by the hospital in her best interests.

Citing PL v. Clinical Director of St. Patrick’s University Hospital IECA 29, 1 I.L.R.M. 441; Justice Hogan said that while “hospital personnel could lawfully attempt to persuade a patient not to leave, this must involve persuasion and not restraint.”

Giving the judgment of the Court of Appeal, Justice Hogan was not satisfied that the hospital had the power to detain AC, which he said amounted to paternalistic entitlement to act in the best interests of the patients whose capacity is impaired and, in effect, to restrain their personal liberty and freedom of movement and, if necessary, to do at the expense of close family members.

Justice Hogan said it was clear the Oireachtas has considered that a patient suffering from severe dementia should, where necessary, be admitted to an approved psychiatric centre. However this “could only take place under the specific conditions specified in the Mental Health Act 2001, accompanied by the various protections contained in Part 2 of that Act. Reiterating the points raised in PL, Justice Hogan said that “the Oireachtas could never have contemplated that persons in the condition of Ms. A.C. could be detained by reference to some self-created power of detention, shorn of all the essential protections for independent review provided for by the ”.

Justice Hogan emphasised that Article 40.4.1 provides that all detention must be in accordance with law, and concluded that CUH did not act lawfully in restraining and preventing her leaving the hospital in the company of her son and daughter on the 23rd June 2016.

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