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Failure to disclose medical report in wardship application was breach of fair procedures

By: Mark Tottenham BL

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Supreme Court, on appeal from the Court of Appeal, determines, inter alia: (a) that a hospital when requested to discharge a patient who lacked capacity, or might lack capacity, was not authorised to detain the person; (b) that the hospital had a duty of care towards such persons, and should not discharge them in a dangerous manner but should have regard to the doctrine of necessity in any urgent situations; (c) that, in the instant case, a report from a medical visitor should have been furnished to a proposed ward prior to admitting her to wardship, and the failure to do so was a breach of her constitutional right to fair procedures; and (d) that the son of the patient had a right to institute an enquiry as to the lawfulness of the detention of his mother, but was not entitled to be heard as a representative on her behalf, unless the court deemed it appropriate.

O'Malley J (nem diss): Wardship - elderly woman (96) admitted to wardship following attempts by her son to remove her from hospital - treatment for broken hips - dementia - multiple proceedings - whether patient had been unlawfully detained in hospital - Article 40.4 inquiries - attempt by patient to discharge herself - whether she had capacity to make decision to leave - ruling by President of High Court that there was no unlawful detention - determination by Court of Appeal that patient had been prevented from leaving - status of patient's son - son unrepresented - Lunacy Regulation (Ireland) Act 1871 - procedure for challenging constitutionality of legislation - locus standi of son in Article 40 application - concept of detention - relevance of patient's capacity in giving effect to her expressed wishes - entitlement of third party to be heard in Article 40 proceedings - whether patient had actually been detained - whether patient actually wanted to leave the hospital - insufficient consideration of this issue in lower courts - duty of care of hospital to patient without capacity who expresses a desire to leave - doctrine of necessity - wardship procedures - lack of provision for legal aid for wards of court - determination of wardship issue made by a judge who had already determined that the proposed ward lacked capacity - entitlement of proposed ward to see report of medical visitor - subsequent orders.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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