The Court of Appeal has ruled that High Court judges erred by failing to decide an application for an inquiry into the detention of A.C., a 95-year-old woman living with dementia at St. Finbarr’s Hospital in Cork.
The joint judgment, delivered on 30 July 2018, said the application was made by A.C.’s son, P.C., under Article 40.4.2 of the Constitution. The court said no decision had been made either to grant or refuse an inquiry, and there had been no substantive adjudication on the legality of A.C.’s detention.
The application followed High Court orders directing that A.C. remain an in-patient at St. Finbarr’s pending further order and restricting P.C. and his sister from trying to remove her. The Court of Appeal noted that a medical visitor appointed by the High Court President was satisfied that hospital staff had cared for A.C. appropriately. It also said her effective detention at the hospital was not really in dispute.
P.C. first presented his application on 16 July. The first judge did not consider it, referring him to a more senior judge. That judge gave him leave to issue a motion on notice to the Health Service Executive and the hospital, rather than deciding whether to direct an inquiry. On 23 July, another judge transferred the matter to the High Court President after being shown a 2017 order requiring applications concerning A.C.’s life, liberty or welfare to be brought within wardship proceedings, with notice to the General Solicitor for Minors and Wards of Court.
The Court of Appeal explained that Article 40.4.2 requires the High Court judge receiving an initial application to decide whether to direct an inquiry. Generally, an inquiry should be directed where an arguable case of unlawful custody is presented or there is doubt about the detention’s legality. The court said that, subject to special circumstances, applicants may make this initial application to any High Court judge, regardless of seniority or administrative listings. An order governing other proceedings could not displace that constitutional procedure.
The court did not itself order an inquiry or decide whether A.C.’s detention was lawful. It concluded that the High Court judges had failed to rule on the ex parte application. P.C. remained free to apply to any High Court judge for an inquiry into his mother’s detention.