The High Court refused leave to seek judicial review of a Circuit Court judge’s decision not to order an independent medical examination of Edel Mcintyre. It found that the applicants had not raised arguable grounds to quash the October 2013 order.
The applicants, Stacia Kelly and Mary Clarke, are executors of the late Annie Mcintyre and defendants in ongoing Circuit Court proceedings brought by their sister, Edel. They sought leave to challenge the refusal of their motion for an examination by consultant psychiatrist Dr Canavan, saying the hearing was unfair and should have been held in public.
The applicants’ concern was that their sister lacked capacity to instruct her lawyers. Her solicitors disputed this. An affidavit filed for Edel in the Circuit Court proceedings referred to a 2006 GP report saying she did not need to be made a Ward of Court, and a later report from a consultant psychiatrist in HSE services in Sligo. That report said she was capable of standing trial in relation to her property and competent to sign a legal document finalising its transfer.
Dr Canavan did not examine Edel. In a letter dated 20 September 2013, he referred to a cognitive assessment from 1993 and said updated cognitive and language assessments were needed to assess her current functioning. The applicants said the Circuit Court judge refused to hear him give oral evidence on their motion. Edel’s solicitor said the judge declined to hear that evidence unless the applicants could establish a legal basis for it, which they did not.
The High Court judge said the motion was framed to be determined on affidavit and that both sides had been heard. The applicants could have provided Dr Canavan’s evidence by affidavit, the judge said; they had no entitlement to call him as an oral witness at the hearing.
On the private hearing, the judge found no proper basis to argue that it made the process unlawful or breached the applicants’ rights. The underlying claim had included a claim under section 117 of the Succession Act 1965, which section 119 required to be dealt with in camera. Although that part of the claim was no longer being pursued, the judge said the Circuit Court judge was entitled to direct a private hearing, including because mental capacity was at issue.
The High Court refused leave to seek judicial review. It noted that the applicants had a right of appeal against the Circuit Court decision, but chose instead to challenge its legality through judicial review.