Irish Supreme Court says absence of legal aid in wardship cases “of real concern”

In a critique of the wardship system, the Irish Supreme Court has said that the absence of legal aid in such cases are “of real concern” and that it is “essential” that the voices of the elderly and wards of court are heard in the process.

The woman at the centre of the case (‘AC’), aged ninety-six, was first admitted to Cork University Hospital (‘CUH’) in the late summer of 2015 after falling at home and breaking her hip. Upon being discharged into the care of her two children, she had another accident and broke her other hip. 

Taking into consideration AC’s frail condition and dependency, along with her alleged incapacity to make personal decisions, the hospital felt it best to accommodate her in a nursing home on discharge.

AC signed a self-discharge letter in June 2016, but the hospital believed she was unduly influenced by her son who wrongly believed the HSE would cover the costs of home care post discharge. The hospital engaged the Gardaí to prevent AC from leaving the nursing home with her son.

Shortly afterwards AC’s son (‘PC’) initiated High Court proceedings to challenge the legality of his mother’s detention in CUH and in the nursing home. The President of the High Court, Mr Justice Peter Kelly, rejected the challenge and began an inquiry into the legal capacity of AC. The President eventually ruled AC a ward of court in August 2016 and deemed it to be in AC’s best interests to be moved back into the nursing home.

The President’s decision was strongly contested by PC and he appealed the decision to the Court of Appeal which unanimously found that AC’s detention was unlawful. The decision was led by Mr Justice Gerard Hogan. He felt the case raised both legal and constitutional issues of “far-reaching importance” regarding care and welfare of elderly patients.

He regarded Article 40.1 of the Constitution which provides that all detention must be in accordance with law. He felt that there was no power evident to allow the detention of AC. The reasons given by the hospital were not relevant and there was “simply no half way house” between liberty “unfettered by restraint and an arrest”.

AC’s case came before the Supreme Court on the 17th of October 2019. The central aim of the court was to explore the lawfulness of the procedures under which an individual could be kept in a hospital or nursing home and made a ‘ward of court’.

However, first, regarding the Health Services Executive’s (HSE) question on the validity of the Court of Appeal’s ruling, the Supreme Court, led by Ms. Justice Iseult O’Malley, held that the analysis used by that Court was “flawed insofar as it did not sufficiently engage with evidence indicating that Mrs. C. might not, in fact, have wanted to leave hospital on those occasions but was simply complying with the issues of others”. However, since the cases are moot, the Supreme Court felt no need to make an order in this regard.

More importantly, the Court held that the procedures under which AC was made a ward of court “were flawed, in that Mrs. C’s fair procedure rights were not vindicated”. The Court regarded the absence of legal aid available to AC and many like her. It held that this “is a matter of real concern, given the consequences of a wardship order and it seems to me that if a person is not in a position to get legal representation it may be necessary to appoint a guardian ad litem to protect her interests”.

The Irish Human Rights and Equality Commission acted as amicus curiae in the case. The Commission used its expertise it gained in the landmark cases L v Clinical Director of Saint Patrick’s Hospital and Ors, which clarified the rights of voluntary patients in approved centres, and AB v Clinical Director of Saint Loman’s and Ors, which found s.15(3) of the Mental Health Act 2001 to be unconstitutional.

Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“The outcome of this case has significant implications for the rights and protections afforded to people whose ability to make significant life decisions may be questioned, including their right to have their voices heard and to be afforded the dignity of being consulted on decisions which impact their lives.”

Click here for the decision.




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