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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> K.(C.) v. Northern Area Health Board & Ors [2003] IESC 34 (29 May 2003) URL: http://www.bailii.org/ie/cases/IESC/2003/34.html Cite as: [2003] 2 IR 544, [2003] IESC 34 |
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Record No. 2002/283
IN THE MATTER OF A WARD OF COURT, P. K.
BETWEEN
APPLICANT/RESPONDENT
RESPONDENT/APPELLANT
NOTICE PARTIES
Judgment of McGuinness J. delivered the 29th day of May 2003 [Nem Diss]
INTRODUCTION
"We refer to the above matter and to previous correspondence.9. The remainder of the letter is not relevant to the instant appeal. 10. Since that date, as this Court was informed by counsel for the Health Board, a further offer of a six week respite care period has been made by the Health Board.
The Health Board have now completed their review assessment in relation to the care and circumstances of P.K. The decision of the Board is to recommend that the present care plan in this case be revised and implemented. Our client has not been involved in the present home care arrangement. The Board will propose as follows:
1
. That P.K. continues to reside in his family home for the present.
2. That the present arrangement whereby the private current carers employed to care for P.K. cease.3. That P.K. avail of the Board's Care Attendants Scheme who would provide care to him which would be supervised and quality assured by a Senior Nurse Manager of the Board.4. The Board considers that, in the circumstances of this case, these services should be available for Monday to Friday between the hours of 9.30 a.m. and 6.30 p.m. In addition the Board will recommend that this care arrangement would allow for one late evening per week until the hour of 9 p.m. and a weekend day per month from the hour of 9.30 a.m. to 6.30 p.m., being a Saturday or a Sunday.5. The Board considers that P.K. would benefit significantly from a social rehabilitation process. In that regard P. is presently attending a Day Activation Unit one morning per week. The Board recommends, in order to promote his welfare, that in the medium to long term he should attend such a Unit for two or possibly three days a week.6. The Board also recommend that P.K. should avail of the Board's Respite Service, The Board would suggest a minimum period of two weeks per annum. In view of P.K's circumstances, to be in a position to engage with this service and taking into account the importance of adapting to a new environment, the Board would recommend a day programme at a Respite Centre to anticipate and alleviate this possible difficulty.7. The Board also recommends making available as appropriate and as and when necessary community nursing services, physiotherapy and occupational therapy.The provision of these services will be subject to a review on a periodic basis having regard to the necessity to take into account any material changes that may arise in the circumstances of this situation.
The Board considers having regard to the position of all the interested parties, that the plan outlined in this letter meets the care requirements of P.K. We shall be glad to have your view on this matter in early course…"
THE PROCEEDINGS
12. Since their inception these proceedings have had a somewhat complicated history. While the proceedings principally concerned the care to be provided by the Health Board to the Ward, Mr. P.K., the applicant in the proceedings is the Ward's sister, C.K., and the proceedings were taken by way of judicial review against the Northern Area Health Board. In her statement grounding the application for judicial review the applicant principally sought an injunction or order of mandamus directing that the respondent provide adequate community care services to P.K. in his home so that his existing and future needs and "just quality of life" (sic) could be maintained, or alternatively an order that the Health Board should fund the provision of such services which at that time cost approximately £750.00 per week. Declaratory orders were also sought. These reliefs were sought pursuant to section 56 of the Health Act 1970 (later amended to include sections 60 and 61 of that Act),"This case has been trapped in a procedural net and should be released immediately. It is entirely inappropriate when the issue is the care of a Ward of Court that a matter, which is determined as urgent in April 2000, in relation to his care is caught in a sea of procedural argument."19. Having surveyed the provisions of the laws relating to lunacy, pointing out that the language of those laws alone indicated their antiquity, the learned judge held that the issue of the care of the Ward was a matter for the committee of the person. She concluded:
"This matter should be brought before the President of the High Court as soon as possible. The parties, apart from the applicant, are State bodies. It is appropriate that resolution of this matter be obtained speedily and without further delay. The President has indicated that he would hear immediately any application regarding contemplated proceedings. I would order that the matter be remitted to the President so that he may consider the current situation, the merits of the issue as to whether the Ward should be part of the judicial review proceedings, whether there should be separate proceedings, indeed whether there should be any proceedings and of what type and against whom, and to give whatever directions he deems appropriate."20. On 22nd January 2001 a further application for directions was made to Morris P. Through the Registrar of Wards of Court the learned President endeavoured to reach an agreed arrangement between the parties as to the financing of the care of the Ward. This endeavour unfortunately did not succeed and on 29th January 2001 Morris P. made an order authorising C.K. the committee of the person of the Ward to continue her judicial review proceedings. On 30th April 2001 Kelly J. made a further order permitting the extension of the grounds for leave to include sections 60 and 61 of the Health Act 1970. 21. Following the filing of further pleadings and affidavits the applicant's judicial review proceedings were heard by Finnegan P. on 3rd October 2001. The learned President reserved his judgment. On 9th May 2002 Finnegan P., delivered his judgment and on 14th July 2002 he made an order declaring that the respondent had failed to satisfy the applicant's entitlement under the Health Act 1970 sections 56 and 60. He also granted the applicant her costs. A stay was placed on the costs order on condition that the respondent would maintain the then current care arrangements for the Ward. 22. It is against this judgment and order that the respondent has appealed. In its notice of appeal the respondent sets out the grounds of appeal as follows:-
"1
. The provisions of section 56 of the Health Act 1970 as amended do not give rise to individually enforceable statutory rights in the applicant.
2. The provisions of section 60 of the Health Act 1970 as amended do not give rise to individually enforceable statutory rights in the applicant.
3. The provisions of section 56 of the Health Act 1970, as amended, impose only a general obligation on the Health Board to provide the services specified in that section for the benefit of those members of the public as a whole who are eligible, either in whole or in part, for those services.
4. The provisions of section 60 of the Health Act 1970, as amended, impose only a general obligation on a Health Board to provide the services specified in that section for the benefit of those members of the public as a whole, who are eligible, either in whole or in part for those services.
5. The statutory duty imposed on a Health Board pursuant to the provisions of section 56 of the Health Act 1970, as amended, are qualified by the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996.
6. The statutory duty imposed on a Health Board pursuant to the provisions of section 50 of the Health Act 1970 as amended are qualified by the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996.
7. The services, pursuant to section 56 of the Health Act 1970,as amended, sought to be provided by the respondent/appellant to the applicant were adequate, appropriate and reasonable having regard
to:
(a) the assessment of the needs of the applicant
(b) the prioritization of the needs of the applicant and
(c) the current availability of scarce financial and related resources available to the respondent/appellant.
8. The services, pursuant to section 60 of the Health Act 1970, as amended, sought to be provided by the respondent/appellant were adequate, appropriate and reasonable having regard to:
(d) the assessment of the needs of the applicant(e) the prioritization of the needs of the applicant, and(f) the current availability of scarce financial and related resources available to the respondent/appellant.
9. The order dated the 13th day of April 2000 granting leave to the applicant to seek an order by way of judicial review did not include a ground that the decisions of the respondent/appellant were neither adequate, appropriate nor reasonable.
23. A Notice to Vary was brought by the notice parties in which the following grounds were set out:-10. The judgment of the learned trial judge does not indicate the factual basis upon which the decisions of the respondent/appellant were neither adequate, appropriate nor reasonable."
"1
. The learned trial judge erred in law and in his interpretation of section 56(
1
) of the Health Act 1970 in his finding that out-patient services within the meaning of that section are identical to in-patient services within the meaning of section 51 of the Act, save that out-patient services are provided at home.
2. Further, the learned trial judge erred in law and in his interpretation of section 56(2) of the Health Act 1970 in his finding that a Health Board was obliged pursuant to the said section to make available to persons in the home services identical in nature to those provided as in-patient services to persons with full eligibility.
24. A notice to vary was also brought by the applicant. The only relief sought in this notice was a variation of the declaratory order of the High Court to include liberty to apply and this was not pursued before this Court.3. The learned trial judge erred in law and in his interpretation of section 60 of the said Act of 1970, in that he failed to have any or any sufficient regard for the necessity for the implementation of that section for the Minister to have had designated purposes within the meaning of that section."
THE STATUTORY PROVISIONS
25. Section 56 of the Health Act 1970, as amended by section"56.-(1
) For the purpose of this section 'out-patient services' means institutional services other than in-patient services provided at, or by persons attached to, a hospital or home and institutional services provided at a laboratory, clinic, health centre, or other similar premises, but does not include –
(a) the giving of any drug, medicine or other preparation, except where it is administered to the patient direct by a person providing the service or is for psychiatric treatment, or
(b) dental, ophthalmic or aural services.
(2) A health board shall, subject to any regulations relating to the services under this section made by virtue of subsection (5), make out-patient services available to persons with full eligibility and persons of limited eligibility.
(3) A health board shall make out-patient services without charge for children in respect of diseases and disabilities of a permanent or long term nature prescribed by the Minister with the consent of the Minister for Finance.
26. Sub-section (5) of section 56 provides for the making of relevant regulations in relation to these services by the Minister, including regulations fixing charges for various services.(4) A health board shall make out-patient services available without charge for children in respect of defects noticed at a health examination held pursuant to the services provided under section 66."
"In-patient services" are defined by section 51 of the Health Act 1970 as:
"51. In this Part 'in-patient services' means institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto."27. The words "institutional services" are not defined in the Health Act 1970. However, according to section 2 of the Health Act 1947:-
"..the expression 'institutional services' includes –
(a) maintenance in an institution
(b) diagnosis, advice and treatment at an institution,
(c) appliances and medicines and other preparations,
28. Section 60 of the Health Act 1970 provides as follows:(d) the use of special apparatus at an institution;"
"60. A health board shall, in relation to persons with full eligibility and such other categories of persons and for such purposes as may be specified by the Minister, provide without charge a nursing service to give to those persons advice and assistance on matters relating to their health and to assist them if they are sick."29. Section 61 of that Act provides:
"61-(1
) A health board may make arrangements to assist in the maintenance at home of –
(a) a sick or infirm person or a dependant of such a person,
(b) a woman availing herself of a service under section 62, or receiving similar care, or a dependant of such a woman,
(c) a person who, but for the provision of a service for him under this section, would require to be maintained otherwise than at home,
either (as the chief executive of the board may determine in each case) without charge or at such charge as he considers appropriate.
30. Section 2 of the Health (Amendment) (No. 3) Act 1996 provides:-(2) In making a determination under subsection (1
), the chief executive officer of a health board shall comply with any directions given by the Minister."
"2. (1
) A health board, in performing the functions conferred on it by or under this Act or any other enactment, shall have regard to –
(a) the resources, wherever originating, that are available to the board for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources,
(b) the need for co-operation with voluntary bodies providing services, similar or ancillary to services which the health board may provide, to people residing in the functional area of the health board,
(c) the need for co-operation with, and the co-ordination of its activities with those of, other health boards, local authorities and public authorities, the performance of whose functions affect or may affect the health of the population of the functional area of the health board, and
(d) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to the functions of the health board.
(2) The provisions of this section shall apply to both reserved functions and executive functions.
(3) Every enactment relating to a function of a health board shall be construed and have effect subject to the provisions of this section"
THE DECISION OF THE HIGH COURT
31. In his judgment the learned President of the High Court set out in some detail the history of the Ward, of the dealings of the applicant and her husband with the Health Board, and of the applicant's proceedings. He considered the question of the locus standi of the applicant. He held that insofar as the applicant originally sought to advance a claim for and on behalf of the Ward the same was not properly maintained. However, in the light of the order of Morris P. authorising the continuation of the proceedings he was satisfied that the action was properly before the Court and that no issue as to the locus standi of the applicant arose. 32. The learned President rejected the claims of the applicant based on the Constitution and this matter is no longer in issue. 33. Finnegan P. went on to consider the provisions of the Health Act 1970 as amended. Having set out sections 56, 60 and 61 of that Act together with the definition of "in-patient services" contained in section 51 (see above) the learned President said:"It seems to me therefore that out-patient services and in-patient services are identical in nature and scope save that the former are provided within the institution and the other being services of the like nature but provided at home. Section 56 (2) provides that a Health Board shall make available out-patient services without charge for persons with full eligibility: P.K. is a person with eligibility. The decision as to the services which ought to be provided in any particular case is an administrative one. However the decision as to the services to be provided must not be capricious or arbitrary. Further the decision as to the appropriate out-patient services must not be such that it could not reasonably have been arrived at within the sense of the term reasonable in the State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202. This Court acting on a judicial review application however is not to substitute its decisions for that of the decision maker merely because it considers that it would have made a different decision. The striking circumstance in this case is that no institutional provision is available as required by section 52 of the Act or at least is not available in any real sense because there are no places available and there is a long waiting list for places. If P.K. is to be provided for at all it must be by way of out-patient services. Notwithstanding the exceptionally high standard required by the State (Keegan) v Stardust Victims Compensation Tribunal I am satisfied that the out-patient services provided by the respondent at the date of the institution of these proceedings were neither adequate nor appropriate nor reasonable and the respondent was in breach of its statutory duty to P.K.34. Having regard to the fact that section 61 of the 1970 Act was regulated by the word "may" rather than the word "shall", Finnegan P. held that there was no statutory right to services under that section and that it was inappropriate for the Court to intervene insofar as a claim under that section was made. The learned judge went on to reject the applicant's claim based on the parens patriae jurisdiction of the Court. 35. In conclusion he stated that he had carefully considered the revised plan put forward by the respondent in the letter of 18th January 2001. He was satisfied that the proposals therein contained were insufficient to discharge the respondent's duty under sections 56 and 60 of the Health Act 1970. In making his declaratory order he had regard to the dicta of this Court in Jamie Sinnott a person of unsound mind no so found suing by his mother and next friend Catherine Kathryn Sinnott v The Minister for Education, Ireland and the Attorney General [2001] 2 IR 545.Section 60 likewise creates an obligation on the respondent to the extent of the obligation being the like of that under section 56 to do so to a reasonable extent. The nursing service provided was likewise not adequate, appropriate nor reasonable. The respondent was in breach of its statutory duty to P.K."
SUBMISSIONS OF COUNSEL
36. Senior Counsel for the Respondent/appellant ("the Health Board"), Mr McEnroy, informed the Court that the Health Board, in arguing the appeal, did so on the basis that the Board accepted that the Ward was deemed to have full eligibility under the Health Acts; he was the holder of a medical card. 37. In his submissions Mr McEnroy chiefly laid emphasis on the interpretation of the relevant sections of the Health Act 1970 as amended. He argued that the High Court judge erred in holding that in the terms of the said sections out-patient services were identical in nature and scope to in-patient services save that out-patient services were provided at home. He submitted that the decision of the High Court in respect of the Ward's claim to the services in question was incorrect as it was based on the misinterpretation of sections 56 and 60 of the 1970 Act. On the evidence the services sought on behalf of the Ward were not out-patient services at all but rather were home help services and a carer's allowance. 38. In regard to the High Court judge's finding that the out-patient services provided by the respondent at the date of the institution of the proceedings were not reasonable in the sense of the term reasonable in the State (Keegan) v Stardust Victims Compensation Tribunal Mr. McEnroy submitted that in her pleadings the applicant had not made a claim that the conduct of the Health Board was unreasonable. The applicant's claim was simple and clear – that the Health Board had not fulfilled its statutory duty under sections 56, 60 and 61 of the Health Act 1970. Even if it were to be accepted that the question of unreasonableness arose, the conduct of the Health Board in regard to the Ward was far from being unreasonable as defined in the well known and much quoted judgments in The State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanala [1993]CONCLUSIONS
43. In her judicial review proceedings the applicant, on behalf of the Ward, seeks an order directing the Health Board to provide "community care services" to the Ward, the precise nature of these services "to be determined at the trial of this application for judicial review". In the alternative the applicant seeks funding from the Health Board to provide such services. While the precise nature of the services sought are thus not delineated in the proceedings, it is clear that they are services to be provided in the Ward's own home and not in a hospital or other institution. 44. All the available medical evidence goes to show that it is in the Ward's physical and psychological interests to continue to be cared for in his own home. All parties to the proceedings accept this, and happily the most recent medical report, dated 28th February 2003, from Dr. Miriam Gannon, confirms that the Ward has made considerable progress and that his condition is much improved. 45. The applicant grounds her claim straightforwardly on the provisions of sections 56, 60 and 61 of the Health Act 1970, the provisions of"Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words."50. This approach has been well established in the decisions of this Court. Most recently perhaps, I considered this principle of construction at pages 31 to 40 of my judgment in D.B.v The Minister for Health and Children and the Hepatitis C Compensation Tribunal (Supreme Court unreported 26th March 2003). 51. It is also well settled law that the individual sections of a statute should be interpreted in the context of the statute as a whole or, where that is so provided by the Oireachtas, in the context of a number of statutes which are to be construed together. 52. Section
"…the expression 'institutional services' includes -53. It seems clear that the legislature intended that the words "institutional services" in sections 51 and 56 of the 1970 Act are to bear the same meaning of the same words in the 1947 Act. 54. Sections 51 and 56 of the Act of 1970 form part of Chapter II of Part IV of the Act. This Chapter is headed "Hospital In-Patient and Out-Patient Services". As set out above section 51 defines "in-patient services" as meaning "institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto." Section 52 goes on to provide at subsection ((a) maintenance in an institution,(b) diagnosis, advice and treatment at an institution,(c) appliances and medicines and other preparations,(d) the use of special apparatus at an institution';"