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Cite as: [2002] IEHC 148

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THE HIGH COURT

JUDICIAL REVIEW

NO. 2000/186J.R.

BETWEEN

C. K.

APPLICANT

AND

HEALTH BOARD

RESPONDENT

AND

THE MINISTER FOR HEALTH AND CHILDREN IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mr. Justice Finnegan delivered on the 9th day of May 2002.

The Applicant was granted leave to apply by way of an application for Judicial Review for the following reliefs:

"(i) An injunction or Order of Mandamus directing that the Respondents or one of them (sic) to provide appropriate community care services to P K in his home at Dublin, so that his existing and future needs and just quality of life can be maintained the precise requirements of such Order to be determined at the trial of this application for Judicial Review.

(ii) Alternatively an Order that the Respondents or one of them should fund the provision of such services presently costing approximately £750 per week.

(iii) Declaratory Orders that the Respondents or one of them should do as requested in parts (i) and/or (ii) of those reliefs sought."

The grounds upon which leave was granted are as follows -

"(i) The Applicant has locus standi as P.K's sister, as one of the Committee of his wardship and as the person who has assumed principal responsibility for his care in recent years.

Section 56 of the Health Act 1970.

Article 40.1 of the Constitution - equality with other individuals who are similarly disadvantaged e.g. children.

Articles 40.3.1 and 2 of the Constitution - the guarantee to protect and vindicate personal rights.

The inherent parens patria jurisdiction to safeguard the interests of those who are not able to look after their own interests."

The Notice Party was joined as a Notice Party by the Order granting leave. At the hearing of this matter before me it appeared that no issue as against the Notice Party arose. The Notice Party withdrew it being agreed that if an issue should arise in the course of the hearing the Notice Party would attend to deal with the same.

The Applicant is the sister of P K and brought the application in that capacity. P K is a Ward of Court and the Applicant is also his Committee but did not originally bring the proceedings in that capacity. P K is 61 years of age. He was involved in a road traffic accident in 1976 and sustained serious brain injury and in respect of which he received substantial compensation. Thereafter his marriage broke down and he now lives with the Applicant. The house in which he resides with the Applicant and her family has been provided out of his funds in the Wards of Court matter. In 1999 his condition seriously deteriorated when he developed septicaemia and other complications and pneumonia. As a result he is now more disabled in physical terms, is blind and has deteriorated mentally. The Applicant has caused to be prepared a care plan for P which centres upon him being cared for at home. The level of care required would be impossible for the Applicant to provide as he needs 24 hour attendance: he is unable to distinguish day from night: he is disorientated: he is incontinent and cannot cope with stairs. The Office of Wards of Court provided funds for improvements to the residence to take account of his disability. The cost of the care being provided by the Applicant is £750 per week well beyond her or P K's means.

On the 24th March 2000 solicitors on behalf of the Applicant wrote to the Respondent. The relevant portion of the letter reads as follows -

"Miss C (Community Occupational Therapist with the Respondent) at the end of her assessment has put three separate proposals to (the Applicant), none of which are remotely satisfactory or in any realistic way meet P's needs.

(1) If all P's resources were used up, he could be placed on a waiting list for a nursing home placement. There are three nursing homes providing long term care to people under 65 years. They have a very long waiting list and only one person was admitted in the past three years.

(2) Should a private nursing home accept P the (Respondent) would provide assistance of £125 a week towards his care. Again this does not remotely meet the case. The minimum fee for nursing homes is £450 per week P has special needs and the cost of maintaining him in a nursing home would therefore be considerably greater. Indeed despite numerous enquiries, only very few nursing homes replied to our client's applications and each of those refused. We enclose copy letters received from them.

(3) If P were to remain at home, the Health Board would provide 35 hours of care per week Again, this is only a small fraction of the total hours of care that he requires. Even with the huge number of hours voluntarily put in by (the Applicant and her family) there is still an enormous deficit and therefore again, this proposal does not remotely meet P's special needs.

In order to conserve the resources available, (the Registrar of Wards of Court) has informed us that all he would have available for P would be a sum of approximately £2,000 per annum. The view adopted by the Wards Office is perfectly understandable. They have exercised their discretion very generously to cover the emergency that arose in the immediate aftermath of P's illness. They cannot be expected to continue to Jill the gap any further as the resources would be exhausted in the space of a mere 12 months. Indeed they will not do so.

We are therefore calling upon you as the appropriate authority to provide full care for P either by way of a total subvention to cover £840 a week necessary to maintain him at home, or, provide the services he needs at home directly, or a combination of both. It is obvious for other reasons that he should be maintained at home in that he has made considerable progress at home and there is a big risk of his regressing if he goes back to institutional care. We require an immediate decision and therefore we need to hear from you with your decision by close of business on Thursday next 30th March otherwise we will institute such proceedings as our clients instruct without further notice to you".

I set out the Respondent's reply of the 3rd April 2000 in full. It is as follows -

"The Health Board has been in contact with Mr. K and his sister C K since January 2000. We have discussed the options of community and residential care available to Mr. K within and outside the Health Board. The following are the options considered.

Community Care

Mr. K lives with his sister, C her husband and son. There is approximately 108 hours of privately paid professional carers, with nursing skills in his home per week and 30 hours of lay carers who are involved in cooking and socialising Mr. K's family provide any other support and care required. The Health Board, community care department does not have services to replace this level of care in the home. The services available are as follows.

Care Attendant Scheme

This scheme is funded and co-ordinated by the Irish Wheelchair Association. A representative from the I.W.A. assessed Mr. K in January 2000 at request of the Health Board They can fund from 20 to 35 hours professional carers per week. The carer would be involved in activities such as personal care and socialising. The I.W.A. currently have difficulty recruiting carers. Providing this number of hours would be exceptional for their service. To date they have been unable to recruit carers for Mr. K.

Home Care Attendants

This is a service provided through the Public Health Nursing Department of the health Board and could provide between 1 and 5 hours per week for the personal care of Mr. K.

Home Help Service

This is a Health Board service. Approximately 1 to 5 hours per week would be available to complete domestic activities associated with the care of P.

Public Health Nursing, Community Physiotherapy, Occupational Therapy and Speech and Language Therapy Services are available to Mr. K as required.

RESIDENTIAL CARE

Young Chronic Disabled Units

Mr. K's family has been advised to apply to these units. Unfortunately only one to two places become available per year and there are waiting lists.

Private Nursing Homes

Mr. K's family has been advised to apply to all Health Board registered nursing homes. To date the family has received several refusal letters from nursing homes due to lack of available places, or inability to provide the level of care required for Mr. K Although finding a suitable placement can be a long process it is usual that every individual can be accommodated appropriately.

Nursing Home Subvention

There is a Health Board allowance payable to individuals who have only small savings available to pay for nursing home care. The standard payment is approximately £120.00 per week for nursing home care. The Nursing Home Subvention Department does pay subventions to individuals who are Wards of Court in situations similar to that of Mr. K. In these cases it has been usual that the monies available to an individual would be spent until approximately £15,000 remains. Subvention is applied for at this time and based on assessment a subvention may be available. If the balance of funds necessary to pay for nursing home care became unavailable, increased subvention or a fully subsidised nursing home placement may be considered. The needs are assessed for on an individual basis. The department involved will confirm this process to your offices.

SUMMARY

The Health Board is unable to provide the current level of care to Mr. K in his own home. Should Mr. K remain in residence with his sister, the Health Board will facilitate access to appropriate community services as discussed above. A maximum of 35 hours of in home care may be available, this being subject to staffing difficulties.

Should a nursing home placement be found for Mr. Kthe Health Board will assess Mr. Kfor subvention and/orfull subsidy of a nursing home bed based on his financial position ".

The Applicant does not wish P to be returned to an institution because on her past experience it will result in a deterioration of his mental state and a need for restraint.

From the Statement of Grounds of Opposition of the Respondent the application is resisted on the following grounds:-

(1) The Applicant lacks locus standi.

(2) The Respondent in fulfilling its obligations under the Health Acts 1947 -1999 must have regard to its resources and must appraise competing claims for the same and allocate priority to them.

(3) The Health Act 1970 imposes general functions on the Respondent regarding the provision of services for the benefit of persons residing in its functional area but the statutory provisions do not give rise to enforceable personal rights.

(4) The services sought by the Applicant do not constitute "outpatients services" within the meaning of the Health Act 1970 section 56 thereof.

(5) The provisions of the Constitution relating to children do not apply to the circumstances of this case.

(6) The parens patria jurisdiction does not apply to the circumstances of this case.

In an Affidavit filed on behalf of the Respondent, the General Manager of the Respondent deposes that the extent of funding received by the Respondent is determined by the Minister for Health and Children. Services provided by the Respondent must be accomplished within the context of the Health Acts and regulations made thereunder and in accordance with established national policy. Within these constraints the Respondent has attempted to assist P and remains willing to do so within the terms of the letter of 3rd April 2000. The Applicant, it is averred, is not entitled to the reliefs which she seeks.

Thereafter the Respondent's position changed somewhat and a letter of the 18th January 2001 set out the Respondent's position as at that date. This reads as follows -

"We refer to the above matter and to previous correspondence.

The Health Board have now completed their review assessment in relation to the care circumstances ofP K. The decision of the Board is to recommend that the present care plan in this case be revised and implemented. Our client has not been involved in the present home care arrangement. The Board would propose as follows:

1. That P K continue to reside in his family home for the present.

2. That the present arrangement whereby the private current carers employed to care for P K cease.

3. That P K avail of the Board's Care Attendance Scheme who would provide care to him which would be supervised and quality assured by a Senior Nurse Manager of the Board.

4. The Board considers that, in the circumstances of this case, these services should be available from Monday to Friday between the hours of9.30 a.m. and 6.30 p.m. In addition the Board would recommend that this care arrangement would allow for one late evening per week until the hour of 9.00 p. m. and a weekend day per month from the hour of 9.30 a.m. to 6.30p.m., being a Saturday or a Sunday.

5. The Board considers that P K would benefit significantly from a social rehabilitation process. In that regard P is presently attending a Day Activation Unit one morning per week. The Board recommends, in order to promote his welfare, that in the medium to long term he should attend such a Unit for two or possibly three days a week.

6. The Board also recommends that P K should avail of the Board's Respite Service. The Board would suggest a minimum period of two weeks per annum. In view of PK's circumstances, to be in a position to engage with this service and taking into account the importance of adapting to a new environment, the Board would recommend a day programme at a Respite Centre to anticipate and alleviate this possible difficulty.

7. The Board also recommends making available as appropriate and as and when necessary community nursing services, physiotherapy and occupational therapy.

The provision of these services will be subject to a review on aperiodic basis having regard to the necessity to take into account any material changes that may arise in the circumstances of this situation.

The Board considers having regard to the position of all the interested parties, that the plan outlined in this letter meets the care requirements ofP K. We shall be glad to have your view on this matter in early course.

There are a number of additional matters of which we would be grateful to be advised of the present situation in relation to P K. These are as follows:

1. It appears that the present significant change in PK's care circumstances arose out of an accident in the home arising out of an injury from food which was provided to him. We should be grateful to know what steps are being taken, if any, in relation to seeking to recover an award of damages in respect of the injuries suffered.

2. P K was granted a medical card in November 1999 on foot of an application by C K, his sister. This application was approved on the basis of P K was in receipt of an Invalidity Pension of £124.70 per week This pension is below the personal guideline of £133.00 and therefore qualifies for the grant of a Medical Card. The application form disclosed no other assets (including income) and the card was granted on the basis of the information furnished It appears that the form of application did not properly disclose the full extent of PK's assets. The Board is under strict statutory duties to account for its expenditure. In these circumstances it is imperative that the Board have full information as to the financial circumstances of PK. In certain cases consideration may be given to providing a Medical Card to an Applicant who does not strictly meet the criteria for such Medical Card

In view of the above, in the event that the existing funds or assets of P K are no longer required, the Board may consider making a claim in relation thereto.

We should be obliged to hear from you in relation to the above matters outlined above at your convenience.

By Order of the High Court made on the 30th April 2001 the Applicant was given liberty to extend the grounds upon which she was relying to include in addition to section 56 thereof sections 60 and 61 of the Health Act 1970 and an amended Statement of Grounds was filed on the 14th May 2001 to reflect this.

The Applicant dealt with the revised plan contained in the Respondent's letter of 18th January 2001 in an Affidavit sworn on the 21st May 2001 and summarised her objections as follows:-

"(1) A change in care personnel would be stressful for P and would cause him to significantly disimprove. It was unnecessary that the carers be registered nurses.

(2) The number of hours offered is insufficient to enable the Applicant and her family to live their own lives.

(3) No offer was made to cover the expenditure incurred by the Applicant to date.

(4) There would be no significant difference, if any, between the cost of the Respondent's proposals and the care regime at present in place ".

In an Affidavit sworn on the 18th June 2001 on behalf of the Respondent the Respondent's proposals were amended to provide for respite care for six weeks each year.

I now propose to deal with the issues raised in these proceedings.

In her Grounding Affidavit the Applicant purports to bring this action as next of kin of P K. The Superior Court Rules Order 15 Rule 17 provides as follows –

"A person of unsound mind may sue his Plaintiff by his committee or next friend."

Again the Rules of the Superior Courts Order 15 Rule 13 provides as follows -

"No cause or matter shall be defeated by reason of the misjoinder or a non joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined or whose presence before the court may be necessary in order the court effectively and completely to adjudicate upon and settle all the questions involved in the cause or matter be added No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his consent in writing thereto ".

In Fostar v Ward 1982 - 83 L.R. I.R. 446 at 477 and 483 an order made but not appealed joining a Plaintiff was disapproved of in circumstances where the Plaintiff prior to the institution of the proceedings had assigned the benefit of the agreement upon which the action was based and an application was made at the hearing to join the assignee as a Plaintiff and acceded to. The Applicant had no right to sue on behalf of P K.

It is clear from the Affidavits in this matter that the Applicant in attending to the needs of P has incurred very considerable expense. However it seems to me that she does not have a personal right of action in respect of the same. The dicta of the Supreme Court in Kathryn Sinnott v The Minister for Education. Ireland and the Attorney General Supreme Court unreported 12th July 2001 in relation to a claim by Mrs Sinnott for expense incurred by her as a result of the defendant's breach of constitutional duty to her son are equally opposite to this claim whether based on a breach of constitutional duty or statutory duty. Keane C.J. dealt with this question at page 70 of the transcript of his Judgment as follows -

"As to the claim of Mrs Sinnott to general damages for the breach of her constitutional rights alleged to have resulted from the admitted breach of the Plaintiff's rights, lam satisfied that this claim is wholly unsustainable. Parents who find themselves in the position of Mrs Sinnott naturally evoke respect, admiration and compassion, but those are not grounds in law for an award of damages. If Mrs Sinnott is to be entitled to damages, it would follow inexorably that every member of a family in the constitutional sense would also be entitled to damages where another member of the family suffered personal injuries affording him or her a cause of action in tort, unless the injury was so trivial that the resultant anxiety caused to other family members m>os transient and of such little moment as to justify it being disregarded. In every other case from a moderate whiplash injury to the most massive quadriplegia since the constitutional rights of the Plaintiff to his or her bodily integrity would unquestionably have been violated, the other members would be entitled to damages if they could plausibly assert that they suffered some degree of anxiety as a result of the person's injuries. That is plainly not the law ".

Insofar as the Applicant originally sought to advance a claim for and on behalf of P K it seems to me that the same was not properly maintained. Such an action could be maintained by P K acting through a next friend the requirements of the Lunacy Regulation (Ireland) Act 1871 being complied with: see re Bourke and Others Persons of Unsound Mind 2 DeGex. Jones & Smith 426. Alternatively the proceedings could be taken in the name of P K by the Committee with the authority of the President of the High Court. The correct Order to be made in these proceedings as originally constituted it is suggested in Foster v Ward at the pages which I have indicated is one dismissing the claim with costs. However on the 29th January 2001 the President of the High Court (Morris P.) made an order in the following terms-

"C K the Committee of the Person of the Ward in the title hereof-named is hereby authorised in the name and on behalf of the Ward to continue the proceedings instituted by her and entitled "The High Court 2000 No. 186J.R. Between C K Applicant and Health Board Respondent and the Minister for Health and Children Ireland and the Attorney General Notice Parties".

In these circumstances I am satisfied that the action is properly before the court and no issue as to the locus standi of the Applicant arises.

As to the argument based on the Constitution I am not satisfied that Article 40.1 can have any application to the circumstances of this case and likewise Article 40.3.1 and 2. Indeed no argument based on these constitutional provisions is contained in the written outline of the Applicant's case nor was the case advanced before me on the basis of the same. A claim based on the Constitution fails.

Reliance is placed by the Applicant on the Health Act 1970 sections 56, 60 and 61. The Health Act 1970 section 56 has been amended by the Health (Amendment) Act 1987 section 1 and the Health (Amendment) Act 1991 section 6. These sections provide as follows –

"56(1) For the purposes of this section "out-patient services " means institutional services other than in-patient services provided at, or by persons attached to, a hospital or home and institutional services provided at a laboratory, clinic, health centre or similar premises, but does not include -

(a) the giving of any drug, medicine or other preparation, except where it is administered to the patient direct by a person providing the service or is for psychiatric treatment, or

(b) dental, ophthalmic or aural services.

(2) A health board shall, subject to any regulations relating to the services under this section made by virtue of subsection (5), make available out-patient services without charge for persons with full eligibility and for persons with limited eligibility.

(5) (Provides for the making of Regulations by the Minister).

60 A health board shall in relation to persons with full eligibility and such other categories of persons and for such purposes as may be specified by the Minister, provide without charge a nursing service to give to those persons advice and assistance on matters relating to their health and to assist them if they are sick.

61(1) A health board may make arrangements to assist in the maintenance at home of

(a) a sick or infirm person or a dependant of such a person,

(b) a woman availing herself of a service under section 62 or receiving similar care, or a dependant of such woman,

(c) a person who, but for the provision of a service for him under this section, would require to be maintained otherwise than at home, either (as the chief executive officer of the board may determine in each case) without charge or at such charge as he considers appropriate.

(2) In making a determination under subsection (1), the chief executive officer of a health board shall comply with any directions given by the Minister".

The definition of "in-patient services" in section 51 of the Act is of assistance -

"In this part "in-patient services" means institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto ".

It seems to me therefore that out-patient services and in-patient services are identical in nature and scope save that the former are provided within the institution and the others being services of the like nature but provided at home. Section 56(2) provides that a health board shall make available out-patient services without charge for persons with full eligibility: P K is a person with full eligibility. The decision as to the services which ought to be provided in any particular case is an administrative one. However the decision as to the services to be provided must not be capricious or arbitrary. Further the decision as to the appropriate out-patient services must not be such that it could not reasonably have been arrived at within the sense of the term reasonable in The State (Keegan) v Stardust Victims Compensation Tribunal 19871.L.R.M. 202. This court acting on a Judicial Review application however is not to substitute its decision for that of the decision maker merely because it considers that it would have made a different decision. The striking circumstance in this case is that no institutional provision is available as required by section 52 of the Act or at least is not available in any real sense because there are no places available and there is a long waiting list for places. If P K is to be provided for at all it must be by way of out-patient services. Notwitlistanding the exceptionally high standard required by The State (Keegan) v Stardust Victims Compensational Tribunal I am satisfied that the out-patient services provided by the Respondent at the date of the institution of these proceedings were neither adequate nor appropriate nor reasonable and the Respondent was in breach of its statutory duty to P K

Section 60 likewise creates an obligation on the Respondent the extent of the obligation being the like of that under section 57 to do so to a reasonable extent. The nursing service provided was likewise not adequate appropriate nor reasonable. The Respondent was in breach of its statutory duty to P K.

Section 61 is regulated by the word "may" rather than the word "shall". In these circumstances it is a matter of policy for the Respondent and having regard to the terms of the section for the Minister if any such services should be provided and if provided to what extent. There is no statutory right to such services. In these circumstances it is inappropriate that the court should intervene insofar as a claim under this section is made.

The Applicant invokes the parens patriae jurisdiction of the court to safeguard the interests of those who are not able to look after their own interests. It is true that the jurisdiction of the court in wardship and minor matters has its origin in the jurisdiction formerly attaching to the Crown in such matters and delegated originally to the Lord Chancellor and now vested in the President of the High Court by the Courts (Supplemental Provisions) Act 1961. The jurisdiction so far as P K is concerned is regulated by the Lunacy Regulation (Ireland) Act 1871. The jurisdiction extends to the persons of wards. I can find nothing in that jurisdiction which would enable me to compel a third party to make provision for a ward unless an obligation to make such provision can be found in the Constitution, by statute or at common law: I have already dealt with the Constitution and statute law and I can find nothing in the common law to support the Applicant's claim. Further it seems to me that where a statute makes provision for a ward in a matter which would otherwise be subject to the parens patriae jurisdiction the court should not exercise that jurisdiction in relation to duties or discretions vested by statute in a statutory authority: See re M. (An Infanfl 19611 AH E.R. 788. The parens patriae jurisdiction is not relevant to the issues raised here.

As to the form of the Order which should be made upon the Plaintiff succeeding I have regard to the dicta in the several Judgments of the Supreme Court in Jamie Sinnott a Person of Unsound Mind not so found suing by his Mother and Next Friend Kathrvn Sinnott v The Minister for Education. Ireland and the Attorney General The Supreme Court Unreported 12th July 2001. The appropriate Order will be in the form of a declaration as to the failure of the Respondent to provide appropriate services to P K in accordance with the Health Act 1970 sections 56 and section 60. Having regard to the absence of a claim for damages in the Statement to Ground the Application for Leave and the provisions of Order 84 Rule 24 it would not be open to make an award of damages.

I have carefully considered the revised plan put forward by the Respondent in the letter of 18th January 2001 quoted above. I am satisfied that the proposals therein contained are insufficient to discharge the Respondent's duty under sections 56 and 60 of the Health Act 1970. The Applicant provides some 108 hours privately paid professional carers with nursing skills and 30 hours lay carers: in addition to this it is clear that the Applicant devotes a great deal of time to the care of P K. The former President of the High Court Mr. Justice Morris and the Office of Wards of Court having wide experience in the matter of care wrote to the Respondent on the 25th January 2001 identifying the care needs of P K as follows:

"(1) He should continue to reside and be cared for at his family home.

(2) Nursing care provided by a qualified nurse from 8 a. m. to midnight each day inclusive of weekends supplemented by home help between the hours of 11 a. m. and 3 p. m. each day.

(3) Existing personnel should be retained to avoid disruption to the care regime caused by their replacement with new carers which would adversely affect his progress.

(4) Respite care to be provided in his home for a period of six weeks each year with a nurse overnight during the respite period

(5) He should avail of the Health Board's Care Attendant's Scheme.

(6) He should be facilitated in attending a Day Activation Unit twice weekly.

(7) He should be provided with community nursing, physiotherapy and occupational therapy services and speech therapy and visual impairment adaptation.

That letter also identified the cost which to that date had been borne by the Applicant from her own funds and the cost borne by the funds available to P K in the Wards of Court matter. While the requirements outlined in the letter are not binding either on the court or on the Respondent they represent the views of those experienced in the area of care and highlight the inadequacy of the services being provided.

In these circumstances I propose to grant to the Applicant relief in the form of a Declaration and I will hear Counsel as to the appropriate terms thereof.