Judge rules that siblings cannot remove elderly mother from hospital

Ann O'Loughlin

The HSE has secured court orders preventing a son and daughter of a frail elderly woman with dementia visiting her in hospital, trying to remove her from there or interfering with her care.

The president of the High Court, Mr Justice Peter Kelly, said the orders were necessary due to “outrageous” behaviour of the siblings at the hospital which caused distress to their mother and led to gardai and security being called.

Mr Justice Peter Kelly
Mr Justice Peter Kelly

The woman, aged in her nineties, was recently subject of a major judgment by the Court of Appeal (COA) which held another hospital acted unlawfully when it stopped her discharging herself two years ago.

The first hospital prevented her leaving in June 2016 with her son to be cared for in his home due to its concerns about absence of agreement on a discharge plan, her mental capacity and frail physical state, having fractured both hips in recent falls.

The COA said the hospital also had "well-founded" concerns about "rather eccentric" behaviour of the siblings. The daughter was once seen covering her mother in cayenne pepper, regarded by some as a natural remedy.

The COA held there is no statutory or common law power permitting the hospital to prevent the woman leaving at an appropriate time and place if she wanted to and the power claimed by the hospital amounted to a "paternalistic entitlement" to act in the best interests of patients with impaired capacity.

The woman was made a ward of court in July 2016 based on findings she lacked capacity to make decisions concerning her health and finances and since late 2016 has been in another hospital facility.

Today, Paul Brady BL, for the HSE, said it appeared a misunderstanding of the COA judgment by the siblings has triggered certain actions by them at the hospital, including attempts to rely on the judgment to secure their mother's removal into their care. This led to gardai and security being called and caused considerable distress to the woman.

Her son had used abusive language to her in a phone call, including calling her a "stupid f...ing woman" and her daughter, accompanied by two men, had visited her, insisting her bags be packed and she leave. The daughter also tried to remove a patch from her mother and interfere with her treatment.

Earlier this week, the son presented himself at the hospital, gardai were present and, during lengthy interactions, the son alleged his mother was being detained against her will and said he would be back to take his mother out.

That prompted the application to court, counsel said.

The committee representing the woman's interests supported the HSE application.

Mr Justice Kelly said the COA judgment concerned events of two years ago when the woman was in a different hospital.

She was since made a ward of court and has been in the second hospital since late 2016 under court orders.

The COA judgment had nothing to do with the current placement, he said.

Given the son had shouted at his mother to take medication which would improve hair growth in her ears in the belief that would improve her overall health, the daughter shook cayenne pepper over her and they sought to buy an exercise bike for a woman with two fractured hips, it was "understandable" the hospital has concerns about them seeking to influence her care, he said.

A court appointed medical visitor and an independent social worker were both satisfied with her care and treatment at the hospital and, from the information known about the siblings and their "eccentric behaviour", it was "hard to contemplate anything worse" than releasing the woman into their care.

It was in her best interests to remain in hospital, he ruled.



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