High Court of Ireland Decisions

 

THE HIGH COURT

RECORD NO. 2024/462 HMCA

[2025] IEHC 115

IN THE MATTER OF [A] AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT AND

IN THE MATTER OF A TRANSFER APPLICATION CONTRARY TO THE VIEW OF FAMILY   

 

 

BETWEEN

A HOSPITAL

APPLICANT

-AND-

 

[A]  

RESPONDENT

 

 

Ex Tempore ruling of Mr. Justice Heslin delivered on the 19^th day of February 2025

Introduction

1.            An application was made ex parte by the relevant hospital as a result of which orders were made on the 13^th September 2024 appointing Mr. David Hickey as the respondent's guardian ad litem and permitting the sharing of the respondent's records with a potential care providers.  Following a hearing on notice to the guardian and in the presence of the respondent's daughter those orders were continued on the 11^th October.

 

2.            The present application is brought by the hospital which seeks permission to transfer the respondent to a certain care facility called [B] and orders were sought which would authorise the care and treatment of the respondent in her best interests. The application is grounded on an affidavit provided by Ms. [C], a social worker in the hospital and in relation to the relevant background Ms. [C] makes averments which can be summarised as follows.

 

Background

3.            The respondent is a lady [in her 70s]. She was admitted to the hospital in April 2024. She has extensive care needs. Her treating team and her family feel that these care needs are incapable of being met at home. This is also the opinion of the multidisciplinary team who are satisfied that full time nursing care is required, and family are in agreement. Prior to admission to hospital the respondent's husband and daughter have been her care - givers for many years and they have also been experiencing significant carer stress. The respondent was refusing necessary care and this includes care specific to her particular condition. She was also having incidents of aggression and was experiencing falls. Since admission to hospital she has settled within the hospital environment but has indicated that she wishes to go home upon discharge. The medical view is that she lacks capacity to make this decision and given her significant care needs her health and wellbeing would be at risk if she were permitted to return home on discharge.

 

Functional capacity assessment

4.            On the crucial issue of the respondent's capacity Professor [D], a consultant physician and rheumatologist, and supervising consultant for the respondent's care in hospital, carried out a functional assessment of her capacity to decide on her long-term care needs. Although the respondent was able to communicate her wish to return home Professor [D] found her to lack insight and to be unable to understand, or to retain, or to use and weigh up information relevant to that decision. In Professor [D]'s view the respondent needs 24 hour nursing care, supervision and assistance. Professor [D] also notes that the respondent has:- "irreversible cognitive and physical impairment that has led to this point and there is no likelihood of recovery".

 

5.            A second clinician Dr. [E] consultant psychiatrist found the respondent to be unable to retain, or appropriately weigh information provided to her about the risks of discharge home and the benefits of long-term care and this confirmed in Dr. [E]'s reporting.

 

Distance

6.            Returning to Ms. [C]'s affidavit, she avers at para. 12 that the proposed placement is suitable for the respondent's care needs. At para. 13 she avers that the respondent's family are not supportive of her transfer to this placement in circumstances where they will find it difficult to visit her there.

 

7.            The family home address of the respondent is stated to be [location] and I note that the proposed placement is in [location] which is some 50 km distant. I am entitled to take account of the fact that it would take at least an hour and longer on public transport, so I do not for a moment diminish the inconvenience that family are likely to experience particularly making a round trip visit. The burden on them is obviously likely to be significant.  

 

 

 

Submissions on behalf of family

8.            This is an issue which featured in the submission by Mr. Hickey, solicitor, on the last occasion and, today, he has made the family's position very clear in his helpful submissions. On the last occasion, I gave him further time to facilitate further attempts to try and identify a placement closer to family. As Mr. Hickey makes clear, there was the hope of a placement in a nursing home called [F]. Although it was originally understood by family that the difficulty was with respect to a Fair Deal application, it transpires that there are already two tracheostomy patients in [F] and that prevents the admission of a third.

 

Very opposed to transfer

9.            As Mr. Hickey makes clear the family are very much opposed to the transfer as it is unsuitable from a geographical perspective. It is also made clear on behalf of family that, given the respondent's medical circumstances, she is not going to be transferred for the next 7 to 10 days. In those circumstances, there is a suggestion that an order would not be made today although Mr. Hickey very appropriately recognises that I indicated on the last occasion that a decision would have to be made. For the reasons expressed today, I hold to that view.

 

10.         Returning to Ms. [C]'s affidavit, she proceeds to aver that despite opposition from her family it is in the respondent's best interests to transfer to the placement as it is not appropriate for her to continue to reside in an acute setting.

 

Efforts to source alternatives

11.         Ms. [C] also exhibits her report of the 21^st January which confirms that very significant efforts have been made to try and source appropriate nursing home care. In the manner she details, referrals were made to numerous nursing homes but the respondent has been rejected by many of them either because no bed was available, or a place was declined due to her very high care needs. Indeed Ms. [C] reports at that stage that no less than 20 different nursing homes were contacted and at that point, of the 10 which responded 9 declined to offer a place and the only proposed placement offered is the one in question being the only placement which has stated that it can cater for the respondent's needs.

 

12.         Updated reporting from Dr. [G] of the hospital confirms that the respondent's capacity remains unchanged. 

 

The proposed placement

13.         I also note the contents of a very detailed pre-admission clinical assessment of the respondent which has been furnished by the Director of Nursing of the proposed placement. This outlines the personalised care and support available to the respondent in the proposed placement, in which all care staff have received and will continue to receive training on dementia - specific care. Details are also given in relation to the facilities available in the placement which was the subject of an inspection by the Health Information and Quality Authority ("HIQA") on the 29^th May last. The report by HIQA is exhibited and includes the following:-

 

"The overall feedback from the residents living at the centre was positive. Residents told the inspectors that they were looked after and that the staff were very kind to them."

 

14.         Later, the report confirms:

 

"This was an unannounced inspection carried out over the day. Throughout the inspection inspectors observed that the staff knew the residents very well and were aware of their individual needs, the dining rooms were bright that spacious and clean, residents enjoyed the dining experience, many were laughing and talking with staff. There were enough staff to assist residents during mealtimes and supervise. The inspector spoke with visitors on the day of inspection, all expressed their satisfaction with the centre and commented on the excellent service including good food, lovely warm living arrangements and lovely staff. 

 

15.         The same report includes a compliance plan in relation to the two areas where the placement was not found to be compliant or substantially compliant. Ms. [C] swore a supplemental affidavit on the 27^th January in which she avers that the guardian ad litem raised a query about the funding of the proposed placement. She avers that the HSE has approved funding and she exhibits inter alia the cost of care as well as the application and confirmation of approval, the weekly cost of care is specified to be €6,149 inclusive of Fair Deal which is stated to be €1,310. 

 

16.         In a second supplemental affidavit Ms. [C] exhibits a report of the 28^th January which was prepared by Ms. [H], Principal Social Worker in the hospital. Ms. [H] reports that the respondent has been referred [by that stage] to over 20 nursing homes but is unfortunately not suitable as the majority cannot care for her care needs, and her particular condition is mentioned. Ms. [H]'s report concludes by stating inter alia the following:

 

"It is the recommendation of the hospital that the respondent be transferred to [named] as they have identified that they can meet her care needs. It is unlikely that an alternative nursing home that can meet her need will be identified in the near future."

 

17.         I pause to say that there is certainly no new development, today, which alter that position. 

 

Up to date position

18.         Ms. [C] swore a further affidavit on the 14^th February making averments which can be summarised as follows. 

·         The respondent currently requires assistance with activities of daily living including washing, dressing and personal care. 

·         She is non-verbal and communicates using movements, gestures, facial expressions and nodding. 

·         She also requires a single room, due to infection control issues.

·         The respondent's needs exceed what can typically be provided in a standard nursing home. 

·         She is at risk by remaining in an acute hospital setting.  

·         As detailed in the exhibited reports (authored by Ms. [I]) the hospital in question consists of 495 adult beds with 420,000 attendances a year and has one of the busiest Emergency Departments nationally. 

·         Currently the hospital has several outbreaks on different wards of flu, RSV and Covid. 

·         With her current care needs and past medical history, the respondent would be a high risk of picking up one of these infections which could be very serious for her health. 

·         The respondent has [by now] been referred to over 30 nursing homes.

·          The proposed placement at [B] is the only one that can meet her care needs and is one of the few that can take patients with laryngectomy / tracheostomy.

·         It is a specialist placement where the respondent would avail of specialist nursing in a dementia - focused unit and its also confirmed that [B] will hold a bed until the 21^st February. 

 

Remaining in an acute setting

19.         Ms. [C] further avers that the respondents' rights are not being vindicated "...by remaining in a risk-acute medical environment for any longer than necessary where there is a specialised placement available to her". She goes on to aver that, notwithstanding the distance between the nursing home and her family the respondent should be transferred to [B] so that her care needs can be properly met and "...she can be safer from infection and further deconditioning". The medical evidence in this application is uncontroverted. 

 

20.          Ms. [C] concludes her affidavit by averring that, after the proposed transfer her family are at liberty to try and identify a more suitable placement for her. 

 

Significant and continuing threat to wellbeing

21.         I also have the benefit of an affidavit sworn by Mr. Robert Scanlon solicitor from the hospital on the 17^th February, in which he exhibited an updated report of the 14^th February in which Dr. [J], consultant physician in the hospital states that the respondent:

 

"... has been an inpatient in the hospital since the 30^th April 2024. She has complex care needs and requires long-term care. Her inpatient stay has been complicated by recurrent hospital - acquired infections. As recently as the 4^th February 2025 she developed a new hospital acquired pneumonia. Residing in an acute hospital setting beyond the period required to treat acute medical issues poses a significant and continuing threat to her wellbeing. It is my professional opinion that she would benefit from transfer to a long-term care facility."  (emphasis added).

 

22.         Finally, by way of the evidence before the court today Mr. Scanlon swore an affidavit yesterday averring among other things that he is instructed that [B] will be available to accept the respondent when she is medically fit. Mr. Scanlon also exhibits a report of Dr. [J] dated 18^th February in which Dr. [J] confirms that he expects the respondent to be medically fit for discharge within the next 7 to 10 days and Dr. [J] also explains the reasons for this, in light of the respondent's particular condition.

 

23.         Dr. [J]'s report goes on to state: -

 

"Residing in an acute hospital setting beyond the period required to treat acute medical issues poses a significant and continuing threat to the respondent's wellbeing. In my professional opinion she would benefit from transfer to a long-term care facility once medically fit for discharge." (emphasis added).

 

24.         That evidence seems to me to address the second issue in the letter which the family took the trouble of writing to me and which I have in front of me. The first issue, as I said, concerned nursing home [F] which bed 'fell through' and reference is made to the respondent being on the waiting list for the next available bed. This second issue is summarised by the following extract from the family's letter: -

 

"Until the medical issue is fully resolved I do not think a nursing home is a suitable place for her at present" and later "until this matter is full resolved and my mother is deemed medically fit a nursing home should not be considered."  

 

25.         Although I entirely understand the sentiment behind the letter and, on a human level, could not but feel for anyone in the position of the respondent's daughter and husband, the issues which have been raised by the family are addressed fully in the reporting I have just referred to.

 

Once medically fit

26.         There is no question of a transfer been made to a nursing home before the respondent is medically fit. Rather, the medical evidence is that (i) once medically fit, the respondent would benefit from a transfer to long-term care; and (ii) residing in an acute hospital beyond the period when she is medically fit for discharge poses significant and continuing risk to her.

 

Primary concern

27.         It is important for all of us to understand that the primary concern of this Court must be the welfare of this vulnerable person and the vindication and protection of her fundamental rights, including, her rights: - to life; to bodily integrity; and to equal access to necessary care. This is in circumstances where, according to uncontroverted evidence, the respondent is someone who lacks capacity to make relevant decisions which are at the heart of this application, in particular, a decision as to where she would reside following discharge from hospital.  

 

 

 

 

Decision

28.         At the risk of oversimplification there is on the one hand the undoubted inconvenience to family for which I can only offer sympathy, because, on the other hand there is very clear evidence of risk to this vulnerable lady of remaining in acute hospital setting after she is medically fit for discharge. 

 

29.         There is also evidence not only of risk, but of actual harm. This is someone who has acquired infections in hospital. 

 

30.         There is also evidence of benefit to her from being discharged to a care setting which can better meet her needs.  

 

31.         Further, the evidence makes clear that there has already been a huge effort, involving no less than 30 nursing homes approached, to try and find an alternative placement closer to family.

 

32.         Therefore, while I perfectly understand the family's wish for a placement geographically closer to them, I am satisfied that granting the relief sought is necessary and a proportionate response by the court to vindicate this vulnerable lady's fundamental rights, in other words, to approve the transfer application. 

 

33.         I also want to emphasise that to grant this application does not in any way prevent family from making such efforts as they wish to try and source an alternative placement closer to them which is capable of meeting the respondents' extensive needs. Indeed, that is what motivated the giving of some time between the application first coming before me and today.  It is clear that family did try but unfortunately were unsuccessful in securing a placement closer to them. 

 

34.         To look at things from another perspective, if this Court were to refuse today's application to transfer, the direct consequence would be for this vulnerable lady to remain in an acute hospital setting which is not appropriate to meet her long-term care needs and where she is at risk of harm.

 

Detention

35.         I note that in addition to seeking an order to permit the respondent's transfer, an order detaining the respondent in the placement is sought.  As counsel submits, this is in circumstances where her expressed wish is to return home. However, at the top of internal page 4 of Professor [D]'s report, he states inter alia that it would be impossible for the respondent to discharge herself against medical advice, because she is "not capable physically of this, nor is she capable of organising it".  

 

36.         Having carefully considered the evidence, and conscious that this Court's inherent jurisdiction extends to making orders which go as far as, but no further than, necessary to vindicate the fundamental rights of a vulnerable citizen lacking capacity, I am satisfied that the evidence does not support a finding that to detain the respondent in the new care placement is necessary or proportionate, given the interference of such an order with autonomy. I take the view on the evidence that transfer and placement orders are sufficient to vindicate and protect her personal rights.