Patricia Brazil, Trinity College Dublin
Where a person lacks capacity to manage their finances or make decisions for themselves, an application can be made to have that person made a ward of court. The President of the High Court (or another judge nominated by the President) exercises the wardship jurisdiction, which includes far-reaching powers to make decisions on behalf of, or in respect of, a person who has been made a ward of court, including where the person will live and whether or not they should receive medical treatment. As of March 2020, at the outset of the COVID19 crisis, there were approximately 3,000 wards of court in the State.
Given the impact of the national shutdown on the functioning of the courts, the operation of many court lists was effectively suspended from 13th March 2020. However, on 16th March 2020 the President of the High Court stated that there would be a judge available to hear urgent wardship cases every day during the shutdown, albeit that certain measures were taken to defer less urgent matters such as standard reviews. During the shutdown, there were a number of applications made in wardship proceedings to authorise discharges of patients from hospitals to nursing homes in the light of the pressure to maximise available hospital beds for treatment of persons with COVID19. For example, on 31st March 2020, the High Court heard that a man with dementia and “plenty of money” had been inappropriately placed in a community hospital for months and his family was not co-operating with efforts to secure him a nursing home place.
In ordinary times, residential placement disputes and health care issues frequently arise in the wards of court list, and it is not surprising that in the context of the COVID19 crisis a number of highly urgent, and extremely sensitive, such cases arose. On 20th March 2020 the President of the High Court authorised the discharge from hospital of a young woman with anorexia because of the COVID19 pandemic, with her court appointed guardian ad litem from the General Solicitor’s office describing her return home as “the lesser of two evils.” Just days later on 24th March 2020 the President of the High Court refused to authorise the discharge from hospital of another young woman with severe anorexia notwithstanding the pandemic, on the basis of unanimous medical evidence that her condition was so severe it could not be treated in the community. This demonstrates that even in the midst of the pandemic, the courts continued to engage in a careful review of cases involving wards of court, weighing the competing interests in order to reach the appropriate outcome in respect of each individual ward of court. On 30th March 2020 the High Court made orders restraining a ward of court from leaving his nursing home for visits to his elderly mother or others due to concerns he did not understand the dangers posed to him and others by the coronavirus. Although such an order involves a significant interference with the right to liberty, Mr Justice Denis McDonald stated that in light of the pandemic, the court was constrained to intervene and make orders of the sort “it would generally not be prepared to make”.
As confirmed in the Re a Ward of Court case in 1996, the jurisdiction of the High Court in wardship cases extends to “life or death” decision-making. On 15th May 2020 the High Court made interim orders allowing a hospital not to resuscitate a brain-injured woman, aged in her 50s, with “a litany of conditions” and a “very poor” prognosis. Counsel on behalf of the hospital emphasised that its application was made in the clinical best interests of the woman and was not based on any consideration of scarce ICU resources in the context of the pandemic.
On 19th May 2020, when the President of the High Court sat in open court for the first time since the shutdown, he expressed his sympathies to the families of 85 wards of court who had died since January, which he noted was twice the number of deaths when compared to the same period last year. The causes of death were not outlined, but the Irish Times noted that it was believed some of the deaths arose as a result of Covid-19 infection, and that a considerable number of those were elderly persons who were in nursing homes or other care units. The high death toll from COVID19 in care homes in England has led to calls for an inquiry there. It remains to be seen whether similar calls are made in this jurisdiction.
The High Court is to be praised for continuing to prioritise urgent wardship cases throughout the pandemic in order to ensure that the rights of some of the most vulnerable in our society were safeguarded. As the COVID19 restrictions begin to ease and courts take steps towards resumption of more normalised, if not fully normal, business, there will undoubtedly be pressure on the wards of court list given the number of non-urgent cases which were deferred at the outset of the crisis. Mr Justice Kelly retired as President of the High Court on 16th June 2020; the Irish Times noted that during his tenure, he “overhauled the wards of court system as best he could with a Victorian-era system being phased out pending the delayed implementation of the 2015 Assisted Decision Making Capacity Act.” The challenge of managing this most sensitive area, which continues to rest on an outdated and inappropriate legal framework, now falls to the new President, Ms Justice Mary Irvine, in the months and years ahead.
Patricia Brazil is the Averil Deverill Lecturer in Law at Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.
Suggested citation: Patricia Brazil, 'Judicial Consideration of Wards of Court during the Pandemic' COVID-19 Law and Human Rights Observatory (13 July 2020) Blog
http://tcdlaw.blogspot.com/2020/07/judicial-consideration-of-wards-of.html
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