Supreme Court of Ireland Decisions

THE SUPREME COURT

169/00

Denham J.

McGuinness J.

Geoghegan J.

IN THE MATTER OF A WARD OF COURT (P .K. )

AND IN THE MATTER OF THE APPLICATION OF C.K.

APPEAL BY C.K.

[Judgments delivered by Denham J. and Geoghegan J., McGuinness J. agreed with Denham J.]

Judgment of Mrs. Justice Denham delivered on the 19^th day of January, 2001

1. Facts

This is an appeal by C.K., hereinafter referred to as the applicant, against the order made by the learned President of the High Court on 9th June, 2000. The facts of the case relate to a ward of court, P.K., hereinafter referred to as the ward of court. The ward of court was born in 1941, and sustained a head injury in 1976 which affected his mental capacity. In 1983 he was awarded damages in a personal injury action and admitted to wardship. His sister, C.K., the applicant herein, was appointed Committee of his Person and Estate.

Prior to the personal injury the ward of court had married and had one son. However, his marriage appears to have broken down in 1979, his wife and son reside elsewhere. The ward of court resides with the applicant in premises which were purchased out of the proceeds of his personal injury claim. The applicant together with her partner and son have cared for the

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ward of court since 1979. He did well in this environment and played a part in the household. However, in 1999 the ward of court swallowed a chicken bone that lodged in his large intestine. This led to septicemia. He was admitted to hospital and after a long period in intensive care he returned to his home with the applicant in a severely disabled state. He is now totally blind, he speaks with great difficulty, he cannot walk, wash, dress, feed or toilet himself without assistance.

2. Judicial Review Proceedings

There have been convoluted court proceedings in this matter. On the 13th April, 2000, a motion came before Kelly J. in the High Court on behalf of the applicant seeking leave ex parte to apply for judicial review. It was ordered in the proceedings, which were against the Northern Area Health Board:

"1. that the Minister for Health and Children, Ireland and the Attorney General be joined as Notice Parties to these proceedings

2. that the said Applicant do have leave to apply by way of application for judicial review for the aforesaid reliefs on the grounds set forth at paragraph D in the said statement

3. that the said Applicant do within 10 days from the date of perfection of this Order, serve an originating Notice of Motion together with copies of the aforesaid Statement and verifying Affidavit and of this Order on the Respondent and on the Chief State Solicitor on behalf of the Notice Parties.

4. that the costs of this application and Order be reserved."

The reliefs included the following:

"(i) Injunction or order of mandamus directing that the Respondents or one of them to provide appropriate community care services to [P-K-] in his home... 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

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trial of this application for judicial review;

(ii) Alternatively, an order that the Respondents or one of them shall fund the provision of such service presently costing approximately £750 per week;"

On an application of counsel for the respondent in relation to the issue of jurisdiction on the 2nd June, 2000, Kelly J. made an order which stayed these proceedings pending an application for directions being made to the President of the High Court and also ordered that nothing be published that would identify the ward of court.

3. The President of the High Court

The matter coming before the President of the High Court, he delivered judgment on the 9th

June, 2000, as follows:

"The Applicant Ms.K- got leave to seek Judicial Review for the reliefs set out in the Notice of Motion in these proceedings i.e. J.R. No. 168/2000. When the matter came before Mr. Justice Kelly, he was referred to s. 9 of The Courts (Supplemental Provisions) Act, 1961 and rightly stayed these proceedings.

The parties thereafter attended in my chambers. Counsel on behalf of Ms.K -

applied for leave to continue the proceedings. I refused this application. I indicated that there was a recognised and approved procedure for obtaining the approval of the President of the High Court for the institution of proceedings on behalf of a Ward of Court. Such application is made by the Committee of the estate of the Ward and the merits of the application are considered inter alia on the prospects of success of the contemplated action. Accordingly, Counsel's Opinion is normally furnished. I indicated to the Applicants that I would immediately entertain any such application. I would have thought that such an application would have been made but in fact no such application was made to me.

With regard to the present Notice of motion, the Moving Party Ms. K- is not the Committee of the estate of the Ward. The General Solicitor is. The claim which the Applicant now seeks to make is for the provision to the Ward of funds to enable him to obtain nursing and maintenance services. In my view it is not appropriate that the Committee of the person of the Ward institutes such proceedings on behalf of the Ward. That is the duty of the Committee of the estate of the Ward who is the General Solicitor.

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Accordingly I refuse permission to Ms. K- to commence proceedings on behalf of the Ward.

In doing so I want to make it clear that Ms. K- does not require my permission to institute her own proceedings seeking any relief to which she may be entitled. If, therefore, she wishes to maintain proceedings in her own name and on her own behalf for the recovery of the cost of these nursing expenses she is at liberty to do so, insofar as I am concerned, but the proceedings must not be brought on behalf of or in the name of the Ward.

The Respondents have suggested that there is a conflict of interest between Ms. K - and the Ward which centers around his continued occupation of his dwelling house. I am of the view that there is a potential conflict of interest and accordingly for this reason also I believe that it is improper that the present proceedings be prosecuted on behalf of the Ward by Ms. K-.

With regard to the remainder of the relief sought in the Notice of Motion I do not have any function in relation to the extension of the grounds for seeking a Judicial Review nor do I propose to make any Order in relation to any other of the reliefs claimed.

Counsel for the Ward sought clarification that the Judicial Review proceedings were therefore to be deemed at an end and this confirmation was given by the Court."

4. Appeal

Against that order the applicant has appealed pleading that the learned President erred in law and/or in fact as follows:

"1. There was no evidence to suggest that the Ward would in any way be prejudiced if the Appellant were allowed to proceed with her judicial review application before either the President or a judge duly nominated by him, nor can any such prejudice be seriously envisaged, inter alia -

a) No order for costs will be made against the Ward;

b) It is inconceivable in any event that either the Health Board or the Notice Parties would seek a costs order against the Ward

c) It is impossible to conceive of how prosecuting the judicial review would put in jeopardy the Ward's assets and such claim as the Appellant made through other solicitors to an interest in the Ward's house cannot in any way be affected by permitting her to prosecute the judicial review.

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2. The reasons given for refusing to permit the judicial review to continue are so vague and unparticularised as not to constitute satisfactory reasons.

3. No good reason or any reason was given for refusing the application to adjourn a determination on relief (iv)(i.e. suing as the Ward's Committee) until all relevant evidence could be before the Court.

4. The Appellant is being denied her right of access to the court is a matter of very considerable moment to her, her husband and child and to her two brothers, including the Ward, in contravention of the Constitution's guarantee of such access and also that under Article 6 of the European Convention on Human Rights; such denial is particularly unwarranted when a judge of the High Court (Kelly J.) has not alone held that the Appellant had a prima facie arguable case but considered the issues being raised to be so that he directed that the Minister for Health and Children, Ireland and the Attorney General should be added as notice parties."

On this appeal the Court determined that the matter should be held in camera.

5. Submissions

Dr. Michael Forde, SC, counsel for the applicant, described the ward's position as being a man approaching 60, that for the last 25 years he has been minded by his sister and her partner, that up to two years ago he was mildly handicapped, that he had been abandoned by his wife and son many years ago, that after his accident two years ago he required 24-hour care. While this has improved over the last twelve months he still requires a very high level of care. It is that level of care and the funding for that which is at issue. Counsel submitted that there is a very good case against the Health Board to provide funding for care of the ward. Counsel referred to medical opinion which was of the view that it would be better for the ward if he was kept in his home. However, the very high level of care required of the ward over the last two years has been a severe drain both financially and physically on the applicant. While until the accident in 1999 the ward had been mildly handicapped

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he now requires intensive care and much of the payment for this has been carried by the applicant. The ward now needs about twelve hours care a day. Whereas originally leave had been granted to apply by way of judicial review on it being recognised as a wardship matter it had come before the President of the High Court and he had made the order under appeal. Whereas originally the applicant had been both the Committee of the Person and the Committee of the Estate, she was now only the Committee of the ward's Person. Counsel submitted that the applicant as Committee of the Person of the ward was seeking permission to proceed with the judicial review. He referred to the right to life of the ward, to the right of access to the court of the ward. Counsel disputed the President's determination that the proper person to bring the proceedings is the Committee of the Estate and not the Committee of the Person. He argued that on medical evidence the ward should be kept at home but for that his carer, the applicant, needs money. That as the Committee of the Person she was the appropriate person to seek that funding. Counsel said that whereas the applicant had a right to proceed in her own name, that was felt too risky in view of a possible locus standi issue. He informed the court that the ward can instruct nobody. Counsel argued that at the core of this case is a care problem, that is the issue in the case and so it is a matter for the Committee of the Person. It is an issue for the Committee of the Person in a modem context. Factors in debate are the assets of the ward and the policy of a Health Board as to the level of assets held by a ward or person before they would make any payments out. Counsel pointed out that two branches of the State, the General Solicitor and the Health Board, who have a duty to look after the ward, are in conflict in this case.

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Brian Spieren, SC, counsel on behalf of the General Solicitor, said that the applicant was bringing the proceedings as Committee of the Person of the ward. Counsel referred to Harris, Law and Practice in Lunacy in Ireland at p. 76:

"Actions are instituted or contrived by the Committee, not the Receiver, under order of the Chief Justice, unless the Committee has a conflicting interest in which case the General Solicitor will be directed to act on behalf of the patient for the purposes of the suit."

Counsel on behalf of the General Solicitor pointed out that originally the applicant was both Committee of the Person and Committee of the Estate of the ward but recently the President had appointed the General Solicitor to be Committee of the Estate of the ward. He said that the procedure is that if it is felt that proceedings for a ward are warranted the matter would be brought to the attention of the Registrar of Wards of Court. That in general an opinion of counsel would then be obtained and the matter would then be brought to the President of the High Court who would make a decision, exercising his jurisdiction as carried over from that of the Lord Chancellor. In this case proceedings had been taken without going to the President. The General Solicitor had obtained counsel's advice subsequent to the proceedings being instituted. That, however, the President has not yet considered the merits of the issue in this case. When the matter was before the President the issue was procedural only. Counsel argued that it is not a matter of access to the court, that the applicant could bring proceedings herself. That any access to the court by or on behalf of the ward would be through the Committee of the Estate which should go through the proper proceedings before the President. He argued that the Committee of the Person was not the appropriate person to bring such proceedings.

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Mr. Felix McEnroy, SC, counsel on behalf of the Northern Area Health Board, said that the

issues appeared to be:

A) Who should sue the Northern Area Health Board?

B) In what capacity should that party sue the Northern Area Health Board?

C) Who will decide who should sue the Northern Area Health Board?

He pointed out that on the 13th April, 2000, leave was granted for judicial review on the basis that there was an urgency. That on the 2nd June these proceedings were stayed by Kelly J..

That on the 24th May the statement of grounds of opposition had been put in. That when the matter was before the High Court the Office of the Wards of Court was not a notice party and had not had the benefit of the opinion of counsel for the applicant. At that time Mr. McEnroy brought to the attention of the court section 9 of the Courts Supplemental Provisions) Act, 1961. In view of the fact that P.K. was a ward of court Kelly J. sent the matter to the President of the High Court. That when the matter came before the President of the High Court the President indicated the correct procedure whereby the action could proceed, being on application of the Committee of the Estate. The President had held that the Committee of the Person could not bring the action. At the core of this issue, he submitted, is a question of the funding for care of the ward and assets of the ward. This brings into focus the policy of the Health Board in giving funding for the ward and its policy in relation to any assets the Ward may have. He pointed out that the Health Board has duties and is accountable for its funding. In addition, counsel for the Health Board drew to the attention of the court the question as to whether there was a household policy insurance in existence which could be relevant to the care of the ward also. He queried whether if such a policy had been in

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existence when he had his accident should proceedings be brought on his behalf in relation to that?

Counsel for the Health Board pointed out that he had raised the question of the jurisdiction of the High Court to proceed with the judicial review in view of the President's jurisdiction in relation to wards of court. He stressed again that the issues appeared to be:

1     Who should sue the Northern Area Health Board?

2     In what capacity should that party sue the Northern Area Health Board?

3     Who decides who should sue the Health Board?

Counsel for the General Solicitor pointed out that the President of the High Court had not made a decision on the merits of the action. That whereas there has been an opinion in relation to such proceedings given to the General Solicitor and sent to the Office of Wards of Court there has been no application to the President in relation to the issue. The court was informed that counsel' s opinion on the merits stated that proceedings should not be advanced,

In reply Miss Hewson BL, on behalf of the applicant, pointed out that there had been an order for judicial review originally and that that had not been proceeded with but in the meantime the family of the ward, the applicant, are burdened with the care of the ward. That time is running out, that they do not have money to fund his care, they have modest means and they do not want to have him go into an institution. That if he does have to go into an institution, which will be funded by the Health Board, that will in fact cost more than his care in the

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home. That what was needed was to get the issue ventilated, and that issue is whether the Health Board owes a duty of care to the ward.

6. Decision

This case has been trapped in a procedural net and should be released immediately. It is entirely inappropriate when the issue is the care of a ward of court that a matter, which is determined as urgent in April 2000, in relation to his care is caught in a sea of procedural argument.

This matter should be returned to the President of the High Court immediately. In his judgment of 9th June, 2000 the President described the recognised and approved procedure for obtaining approval from the President of the High Court for the institution of proceedings. The President held that such application should be made by the Committee of the Estate. However, the issue is the care of the Ward. The ward is currently in his home but requires considerable care. His assets are diminishing but not yet depleted. The applicant and her partner have been supplying much of the care of the ward. They do not wish the ward to leave his home and go to an institution. Medical evidence supports this view. Indeed, financially it would cost less to fund him in the home rather than move him to an institution. What the Court will have to consider is the care of the person of the ward. It is not the ownership of his house or any other property. Law was quoted to the court as to the areas of responsibility of the Committee of the Estate of the Ward and the Committee of the Person of the Ward. Much of this law is centuries old and reflects a different era. The language alone

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indicates its antiquity and with that raises queries as to its current position. The issue of the care of the ward is a matter for the Committee of the Person. In Theobald, The Law Relating to Lunacy, 1924, the duties of the two committees are described a p. 41 as:

"In the case of the estate of the lunatic the custody, regulation, occupation, disposition and receipt of the estate are committed and granted to the committee of the estate.

In the case of the person, the custody of the person and the regulation and government of the lunatic are committed to the committee of the person."

The powers of the Committees are described at p. 49 as:

"The committee of the estate is the proper person to represent the lunatic in all proceedings in England, and a Scotch curator has no locus standi here so long as there is a committee of the estate. R.S.A., sup.; Aytown, (1901) W.N. 165.

The committee of the person has complete control over the person of the lunatic and it is his duty to make all necessary arrangements for his care and treatment.

The lunatic may be received into an institution, or as a single patient, upon an order signed by the committee of the person having annexed thereto an office copy of the order appointing the committee, or, if no such committee has been appointed, upon an order signed by the Master (Lunacy Act, 1890, s.12).

...

According to English practice, the choice of the lunatic's residence is within the discretion of the committee of the person, but this discretion is subject to any directions which it may be proper to give on the advice of the Chancery Visitors or otherwise.

In Ireland no such discretion is given to the committee of the person. There the Lord Chancellor himself fixes the lunatic's residence. Abraham, Law and Practice of Lunacy in Ireland, 173 -175."

The Committee of the Estate has been described as being in the position of a bailiff. In other words it is an agent or steward to take care of the property of the ward. Modern issues of the rights of the ward of court in relation to his person were not extant when this law was

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commenced. However, such issues exist now. They are matters in the first instance for the President of the High Court. It is for the President to exercise his jurisdiction to determine what is best for the ward. This includes decisions as to litigation. These decisions of the President are for the benefit of the ward of court and not to exclude him from the court's process or from access to justice.

In relation to issues of care of the ward, which includes matters such as his care at home and his well-being, I am satisfied that the Committee of the Person has rights and duties and these may include litigation on behalf of the ward. Indeed, this is especially so if the Committee of the Estate is taking a view which the Committee of the Person believes is having a detrimental effect on the person of the ward. In such a conflict it is open to the President of the High Court to sanction proceedings on behalf of the ward by the Committee of the Person. In this case the High Court (Kelly J.) has already held that there is an arguable case for judicial review.

At issue in this case is the access of the ward of court to the courts and to justice. It is not a question of the access of C-K- who at all times can bring proceedings on her own behalf. What is at issue is not the access of C-K- but rather the right of the ward to the jurisdiction of the court; especially the court's protection on issues relating to his human and fundamental rights, to his care, bodily integrity and dignity.

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7. Conclusion

This matter should be brought before the President of the High Court as soon as possible. The parties, apart from the applicant, are State bodies. It is appropriate that resolution of this matter be obtained speedily and without further delay. The President has indicated that he would hear immediately any application regarding contemplated proceedings. I would order that the matter be remitted to the President so that he may consider the current situation, the merits of the issue as to whether the ward should be part of the judicial review proceedings, whether there should be separate proceedings, indeed whether there should be any proceedings and of what type and against whom, and to give whatever directions he deems appropriate. The President may be in a position to resolve the issue of the care of the ward without further litigation. However, whether litigation is appropriate it is for the President to determine. Consideration may also be given to other issues raised, such as a Household Insurance Policy and the accident of the ward. Such applications should be held in court, in camera.

THE SUPREME COURT

Denham J.

MçGuinness J.

Geoghegan J

169/2000

IN THE MATTER OF A

WARD OF COURT (P.K.)

AND IN THE MATTER OF THE

APPLICATION OF C.K.

APPEAL BY C.K.

Judgment of Mr. Justice Geoghegan delivered the 19th day of January 2001

The appellant is the sister and joint committee of the person of the above-named Ward of Court. Under arrangements worked out some years back in wardship proceedings under a former President of the High Court, the Ward lives at home with her and her partner. The appellant's brother is the other committee of the person. For reasons which will be explained in this judgment the Ward now requires round the clock nursing and attention. While the appellant can contribute to these needs she is not herself a person of private means and is in a salaried job and would, therefore, require either free assistance from or with the authority of the health board, or the money to obtain privately such assistance. On advice from her lawyers she believes that the Northern Area Health Board is under a constitutional and

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statutory duty to provide the necessary assistance, especially as all the medical advice indicates that the Ward should remain at home. The health board, to date, has not offered to provide the necessary level of assistance. At one stage the appellant decided to litigate this complaint herself without involving the Ward in the proceedings and she actually obtained leave to bring judicial review proceedings against the health board by an order of Kelly J. made the 13th of April, 2000. But unfortunately the substantive matter then got buried and lost in procedural wrangles. When the application for judicial review, pursuant to the leave, came again before Kelly J. the health board argued that some of the grounds of relief involve the rights of and protective obligations relating to the Ward and that that being so section 9 of the Courts (Supplemental Provisions) Act, 1961 required that these matters could not be aired and disposed of in the courts other than under the authority of the President of the High Court or a judge assigned by him exercising wardship jurisdiction. Kelly J. accepted this submission and stayed the judicial review proceedings pending an application to the President.

The matter then came to the attention of the President by way of notice of motion for directions brought on behalf of the appellant. The directions sought included certain specific directions which were as follows:

"i. Assigning a judge of the High Court to hear that judicial review.

ii. The extension of the grounds of relief to include sections 60 and 61 of the Health Act, 1970.

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iii. A pre-emptive order for costs against either the respondent or the notice parties.

iv. Alternatively, leave for (C.K) to prosecute those proceedings as the Ward's committee.

v. Such further directions as may be neat and proper, including interim provision for the Ward's upkeep."

The President delivered a written judgment on the 9th of June, 2000 refusing the application. This appeal is against that refusal. In the judgment, the President expressed the view that there was "a recognised and approved procedure for obtaining the approval of the President of the High Court for the institution of proceedings on behalf of a Ward of Court. Such application is made by the committee of the estate of the Ward and the merits of the application are considered inter alia on the prospects of success of the contemplated action. Accordingly, counsel's opinion is normally furnished". The President then went on to say that he had indicated to the applicant that he would immediately entertain any such application brought in that manner and that he would have expected that such an application would have been made, but none in fact had been made to him. He considered that there were procedural objections to permitting the appellant prosecute the judicial review proceedings as the Ward's committee because she was not the committee of the estate. The committee of the estate was the General Solicitor for Minors and Wards of Court. The President made it clear that the appellant was entitled to bring her own proceedings provided that she was not involving the Ward.

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He also held that there was a potential conflict of interest between the appellant and the Ward (this related to the ownership of the house) and he further held that he did not have any function in relation to any other reliefs and especially the relief relating to the extension of grounds for seeking judicial review.

Assuming that the President was correct in his view that any proceedings brought on behalf of the Ward would have to be brought by the committee of the estate rather than the committee of the person, it did not follow from that that the appellant was wrong in bringing the motion before him or that the motion should have been dismissed simpliciter. As committee of the person, she certainly had a right of access to the President and was entitled to bring a motion before him since the matters in controversy peculiarly related to the care of the Ward's person rather than his property. As most of the wardship law in this jurisdiction was developed before the independence of the State and carried over under the two constitutions, it is, I think, relevant to cite paragraph 896 of volume 19 of the first edition of Halsbury's Laws of England where the duty of the committee of the person is succinctly described. The paragraph reads as follows:

"In the case of a lunatic so found, the committee of the person has the duty of fixing the residence of the lunatic, regulating his establishment, and making provision for his maintenance."

The footnotes cite Hope, Law and Practice of Lunacy 2nd edition 108 and Elmer, Practice in Lunacy, 180 as authority for this proposition. Although there may have been differences between the old Irish and English jurisdictions I do not think that

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there was any difference in the basic functions of the committee of the person. On that definition it would seem to me that she clearly had an interest in making any relevant application to the President of the High Court concerning matters of care and maintenance, though in routine matters it might be an abuse to do so without first going through the Office of Wards of Court. Where she may have gone wrong was in seeking to continue the proceedings on behalf of the Ward in her capacity as committee of the person. I would not even be absolutely certain of this because the case law, which determined that the appropriate person to bring proceedings is the committee of the estate, would for the most part have related to cases concerning property. I do not find it necessary to form a final view on that matter. There is certainly force in the argument that there is, to a certain extent, a property interest in relation to any proceedings brought on behalf of the Ward because of at least the theoretical possibility of a liability for costs and, therefore, it may well be that the committee of the estate is always the appropriate party. But even if the appellant was technically incorrect in the relief that she sought, nevertheless having regard to the non-adversarial nature of wardship proceedings, I find it difficult to understand why it was necessary to dismiss the application altogether. The committee of the estate who happens in this case to be the General Solicitor for Minors and Wards of Court is nothing more than an agent of the President of the High Court. If the President considered that any such proceedings would have to be brought in the name of the committee of the estate there was nothing to prevent him so holding but then further investigating whether in fact it was in the interest of the Ward either that the judicial

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review proceedings be continued for the benefit of the Ward or that completely new proceedings be brought for the benefit of the Ward. But clearly the President seems to have taken the view that once he found that the applicant would not have been a proper party he ought not to consider the merits of the application at all. Having regard to the very serious consequences for the Ward if the appellant is unable to continue to maintain him in the manner in which he must be maintained it was, and still is, a matter of the utmost urgency to consider whether there is a viable legal proceeding to force the health board to give the necessary assistance. This court has had the benefit of seeing not just the opinion of Dr. Michael Forde, S.C. and Miss Hewson, but also a very detailed joint opinion of Mr. Brian Spierin, S.C. and Mr. Denis McDonald on behalf of the General Solicitor for Minors and Wards of Court which unfortunately has never been shown to the President. Both opinions, though conflicting, are very well researched and it is imperative, in my view, that at the earliest possible moment a way be found to bring both opinions to the attention of the President and for him to consider on its merits whether it is advisable for the Ward to be involved in the existing judicial review proceedings or whether some form of separate proceedings should be brought or whether no proceedings at all be brought. In the particular circumstances of this case it would be desirable that the opinions be exchanged and that the President or a judge designated by him hear oral submissions from both counsel on behalf of the appellant and counsel on behalf of the General Solicitor. The health board should not be represented at the hearing.

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If, as I have suggested, this case is sent back to the President for consideration on the merits by him of the Ward being effectively joined in the existing judicial review proceedings or the possibility of separate judicial review proceedings in the name of the Ward it will be important that the President be brought up to date with relevant correspondence which has come into existence since his order. I particularly have in mind the letter of Ms. Deirdre Smith of the Office of the General Solicitor for Minors and Wards of Court, dated the 13th of October, 2000 to the Chief Executive Officer of the Northern Area Health Board and the reply thereto of the 19th of October, 2000 which must give rise to some element of optimism. As the letter of the 13th of October succinctly sets out the factual background to this case I think it useful to cite it in full. It reads as follows:

"Dear Sir

The General Solicitor for Minors and Wards of Court is Committee of the estate of (P.K.), a Ward of Court, hereinafter called 'the Ward' of 18 Caragh Road, Cabra, Dublin 7.

The Ward Was born on the 19th of March, 1941. He sustained a head injury in 1976 which affected his mental capacity and on the 7th of March, 1983 he was declared a Ward of Court.

The Ward is married with one son, aged about 26 years. He is estranged from his wife, (A.K.) and lives in his own home at 18, Caragh Road with his sister, (C.K), her partner and their son.

As the Committee understands it, the Ward appears to have done very well in this environment and to have played a part in the household. However, in February 1999, the Ward swallowed a chicken bone that lodged in

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the large intestine. This led to septicaemia and gangrene. He was admitted to the Mater Hospital and after a long period in intensive care, he returned to Caragh Road on the 12th of October, 1999.

When he returned home he was totally blind, spoke with great difficulty, could not walk, wash, dress, feed or toilet himself without assistance.

The Ward's sister (together with her partner and son) was unable to cope with the Ward's care on her own, and approached the Health Board for assistance. The Health Board indicated that some assistance was available from the Irish Wheelchair Association which was prepared to fund twenty to thirty five hours of professional care per week. Under the Home Care Attendance Scheme operated by the Health Board, a further one to five hours per week was available from the Public Health Nursing Department to assist in the personal care of the Ward. In addition there was a further Health Board home help service which provides personnel for one to five hours per week to assist in domestic activity.

However, these services are not sufficient to provide the type of round the clock care, which the Ward requires. The Ward's sister and her partner have engaged the services of private carers, but the cost of care runs to approximately £750.00 per week. The Ward's sister estimated that at present, the Ward requires some 108 hours of privately funded professional care from persons with nursing skills and a further thirty hours from lay carers who would be involved in domestic work and socialising. Obviously, the funded care available from the Health Board and the Irish Wheelchair Association would not be sufficient to meet these expectations.

The Ward's funds in court are very limited and would be insufficient to discharge expenses at the level of approximately £750.00 per week.

The matter has been raised with the Northern Area Health Board through (Ms. K's) solicitors, MacGeehin and Toale. The Committee understands that the Health Board has suggested that in the circumstances the Ward should be

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taken into residential care but that no guarantee has been given by the Health Board that it would fully fund nursing home care.

I enclose herewith for your reference, sent on a confidential basis, a copy of the most recent medical report in the Committee 's possession regarding the Ward, being a medical report from Dr. Mark Delargy, consultant in rehabilitation medicine, dated June 2000. You will note that Dr. Delargy is of the view that it is in the Ward's best physical, cognitive and quality of life interests to be cared for at home. Dr. Delargy goes on to state that, in his view, the current care provided by the Ward's sister and the home help service has been instrumental in improving Mr. K 's quality of life.

The purpose of this letter is to call upon the Northern Area Health Board to give individual consideration to the Ward's individual circumstances and needs and to request the Health Board to confirm that the Board will be in a position to fund the level of care and support required in order to maintain the Ward in his home environment.

Yours faithfully"

Up until that point all correspondence coming from the health board had indicated that the Board could not fund the home care apart from making a minor contribution and as is pointed out in the letter they were not able to guarantee residential care either. However, when the matter goes back to the President he may well take the view that a change of attitude can be detected from the letter of the 19th of October, 2000 which was written in reply to the letter above cited. The reply read as follows:

"Dear Ms. Smith,

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I wish to acknowledge receipt of your letter dated 13th of October re the above.

I have noted the points raised. It is our policy to keep people in their own home for as long as possible and I am sure we can agree a satisfactory solution with P.K. and his sister and her household about his future needs.

Mr. John Lamont, my Assistant Chief Executive, will contact Ms. C. K in this regard as quickly as possible.

Yours sincerely"

Having regard to the dire needs of the Ward it is of the utmost importance that the President should urgently consider all aspects of the case as to whether in all the circumstances the Ward should be involved in litigation with the health board. I would, therefore, allow the appeal and order that the matter be remitted to the President of the High Court with the intent that he would consider both the merits of the case and the appropriate procedures within the framework of this motion and then make whatever directions that he sees fit accordingly.

There is just one other matter to which I think I should refer even though it was not relevant to this appeal. Counsel for the Health Board in the course of his submission speculated as to whether there might have been a house policy of insurance covering a liability (if any) to the Ward for the chicken bone accident. I think it proper to mention it as it may be an additional factor which the President may want to investigate and consider.