2 New Appeals: Habeas Corpus in a Ward of Court procedure, and that procedure’s conflict with rights under the Constitution and ECHR

In this determination, AC & Anor v Cork University Hospital & Ors, the Supreme Court granted the Health Service Executive (HSE) leave to appeal against the Court of Appeal’s decision that it acted unlawfully in refusing to release Mrs C even though the hospital staff were concerned for her welfare and believed that she did not have the mental capacity to make the decision to leave.

In this second determination, AC v Fitzpatrick, Director of Nursing at St. Finbarr’s Nursing Home & Ors, the Supreme Court granted PC leave for a leapfrog appeal challenging High Court orders making his mother, Mrs C, a ward of court. Leave is granted on the narrow grounds that the wardship procedure in the High Court, which has its statutory grounding in the Lunacy Regulation (Ireland) Act 1871 and s 9 of the Courts (Supplemental Provisions) Act 1961, is incompatible with rights guaranteed under the Constitution and the European Convention on Human Rights.



In June 2016, Mrs C was 93 years of age and suffering from dementia. Her son, PC, and daughter sought to have her released into their care from Cork University Hospital (CUH). CUH refused to release Mrs C as medical staff had concerns for her welfare and believed she did not have the mental capacity to make a decision concerning her own release.

PC issued High Court proceedings under Article 40 of the Constitution (habeas corpus) seeking an order that CUH release Mrs C onto his care. Kelly P refused to grant that order. He found that Mrs C was not in unlawful detention, as two consultants had given evidence that they had concerns for her wellbeing and her capacity to make the decision on her own release.

PC appealed that decision to the Court of Appeal. In the intervening time, the High Court, Kelly P, granted the HSE an order making Mrs C a ward of court, placing her in the care of St Finbarr’s Nursing Home. Kelly P also ordered that Mrs C’s release from the HSE’s care could only be pursued through the ward of court procedure—not through an Article 40 application.

The CoA (here) made a declaration that “at the time of the original application in the High Court, [there was] no lawful basis for Mrs C’s continued detention and also held that she was entitled to maintain the proceedings notwithstanding that she had been admitted to wardship” [Det 4]. The CoA made no orders.

The HSE applied to the Supreme Court for leave to appeal that decision. The Court granted leave on grounds that the case raised matters of general public importance that could arise on other occasions. That is the subject of the first determination, above.

Following the CoA decision, PC sought to have Mrs C released from St Finbarr’s into his care. St Finbarr’s refused on grounds that Mrs C was a ward of court in their care. PC brought another Article 40 application to the High Court. A number of judges refused to hear that application. The CoA held that those judges were in error in refusing to hear PC’s application. PC returned to the High Court. Faherty J heard his application but rejected it on grounds that Mrs C is a ward of court and is not in unlawful detention.

PC sought leave for a leapfrog appeal to the Supreme Court. That is the subject of the second determination, above. Given Mrs C’s age and the urgency of the case, the Court made a discretiorary exception to the rule that an Article 40 application is not an appropriate vehicle for correcting past unlawful detentions: it is an exceptional remedy in urgent cases. The Court granted PC leave on the narrow grounds outlined above.

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