The Court of Appeal has ruled that Cork University Hospital had no legal power to prevent an elderly patient from leaving with her son and daughter in June 2016, even though clinicians considered her unable to decide where she should live and believed the restraint was in her best interests.
In a judgment delivered on 2 July 2018, Mr Justice Gerard Hogan partly allowed appeals brought on behalf of A.C. under Article 40.4.2 of the Constitution. The appeals challenged High Court refusals to order an inquiry into her alleged unlawful detention. The Court of Appeal found that the hospital had in fact detained her when staff took steps to prevent her leaving on 23 June 2016, but held that no legal authority for that detention had been identified.
A.C., then 93, had been in hospital following two hip fractures. A hospital multidisciplinary team considered that she needed nursing-home care and lacked capacity to decide on her discharge plans. She had signed a letter stating that she wanted to leave, but it also said the hospital and Health Service Executive would be responsible for the costs of her care at her son’s home. Her treating consultant said the team did not believe she understood the consequences of leaving against medical advice. The hospital sought security and Garda assistance to prevent her family taking her from the ward.
The High Court refused both Article 40 applications, accepting medical evidence that A.C. lacked capacity to make decisions about her care and was not unlawfully detained. A medical visitor was appointed to report on her capacity; she was taken into wardship in August 2016. She moved from Cork University Hospital to St Finbarr’s Hospital in December 2016.
The Court of Appeal said a hospital could try to persuade a patient not to leave, but persuasion must not become restraint. It found no common-law power allowing a hospital to detain a patient on the basis that staff considered it best for her. The judgment said that any new power to restrain patients in such circumstances, with appropriate safeguards, was a matter for the Oireachtas.
The court allowed the appeal to the extent that Cork University Hospital had not acted lawfully in restraining A.C. on 23 June 2016. Because she was no longer at the hospital, an order for her release was unnecessary. The ruling addressed the legality of the restraint; it did not decide what care arrangement would have been best for her.