Son fails in bid to have mother returned to his care

The Supreme Court has refused to make orders allowing an elderly woman with dementia return to live with her son pending his appeal over whether she is lawfully detained in a nursing home as a ward of court.

The balance of justice and convenience “overwhelmingly” favour the woman, who is in ner nineties, remaining in the nursing home in the care of the HSE pending the appeal, the three judge court ruled on Thursday.

The concerns raised by the man and his sister regarding the legal basis for their mother’s continued care by the HSE can best be addressed by an early hearing of his appeal, which has “regrettably” been delayed by the injunctions application, Mr Justice Donal O’Donnell said.

That is one of about 19 applications brought by the man concerning his mother’s care.

The Supreme Court agreed last October to hear his appeal over a finding that his mother, who was previously prevented by a hospital from discharging herself, is lawfully detained as a ward of court in the nursing home.

The case raises significant issues concerning whether the High Court’s wardship procedure offers sufficient safeguards in the context of the detention of people allegedly suffering from a mental disorder.

Fractured hips

In June 2016, a hospital prevented the woman leaving with her son to be cared for in his home due to its concerns about her mental capacity and frail physical state, having fractured both hips in recent falls.

The hospital also had concerns about the behaviour of her son and daughter for reasons including the latter was once seen covering her mother in cayenne pepper and the family had bought their mother an exercise bicycle.

Her son in July 2016 lost applications to the High Court under Article 40 of the Constitution arguing his mother was in unlawful detention.

At the time of those Article 40 hearings, an order was made which culminated in the woman being made a ward of court. She is now in a nursing home on foot of the High Court’s wardship jurisdiction.

Last July, the Court of Appeal granted the son’s appeal over the High Court’s July 2016 rejection of his Article 40 applications but stressed its decision related only to her detention in the first hospital, which had ended by the time the appeal was heard.

While agreeing the first hospital was acting in what it considered was the woman’s best interests, the Court of Appeal ruled a patient must, on request, be released from a hospital unless there is a clear legal authority either under statute or as a result of a court order justifying a refusal to release.

The son then took a fresh Article 40 application before the High Court challenging his mother’s current detention. The High Court ruled last August his mother is validly detained under the High Court wardship orders.

The Supreme Court then agreed to hear a further appeal, on a date to be fixed, against that finding.

The appeal raises issues of the interaction of the historic wardship legislation grounding the wardship jurisdiction of the High Court with modern mental health legislation.

Another judgment pending from the Supreme Court will address similar issues regarding the proper parameters of the wardship jurisdiction.