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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> K.(C.) v. Northern Area Health Board & Ors [2003] IESC 34 (29 May 2003) URL: http://www.bailii.org/ie/cases/IESC/2003/34.html Cite as: [2003] IESC 34, [2003] 2 IR 544 |
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Record No. 2002/283
IN THE MATTER OF A WARD OF COURT, P. K.
BETWEEN
APPLICANT/RESPONDENT
RESPONDENT/APPELLANT
NOTICE PARTIES
Judgment of McGuinness J. delivered the 29th day of May 2003 [Nem Diss]
INTRODUCTION
1. This is an appeal from the judgment and order of the President of the High Court by which he granted to the applicant a declaration that the respondent Health Board had failed to satisfy the applicant's entitlement under the Health Act 1970 sections 56 and 60. In addition to the appeal by the respondent (whom I shall call "the Health Board") there was also before the Court a Notice to Vary on behalf of the notice parties (the Minister for Health and Children and the Attorney General). A document entitled Notice of Cross Appeal/to Vary on behalf of the applicant was also produced to the Court. It appeared that this cross-appeal/to vary had come into existence subsequent to the filing of the books of appeal. 2. The applicant in these judicial review proceedings is the sister of P.K., a ward of court. She is, jointly with her brother, the Committee of the Person of the Ward. The General Solicitor of Wards of Court is the Committee of the Ward's Estate. While the form of the declaratory order made by the High Court refers to the entitlement of the applicant, C.K., it is clear from the judgment of the President of the High Court and from the entire course of the proceedings that it is the entitlement under the Health Act 1970 of P.K., the Ward on whose behalf the proceedings were brought, that is effectually in question. 3. Mr K., the Ward, was born in 1941. In 1976 as a result of a car accident he received a serious head injury which resulted in epilepsy and brain damage. In 1983 he was awarded damages in a personal injury action and was admitted to wardship. 4. Prior to the personal injury the Ward had married and had one son. However, at least in part due to the effects of his injuries, his marriage appears to have broken down in 1979. His wife and son reside elsewhere. The Ward resides with the applicant in premises which were purchased out of the proceeds of his personal injury claim. The applicant together with her partner and son have lived with the Ward and cared for him since 1979. The Ward did well in this environment and played a part in the household. However, in 1999 the Ward accidentally swallowed a chicken bone that lodged in his large intestine. This led to acute septicaemia. He was admitted to hospital and after a long period in intensive care he returned to his home with the applicant in a severely disabled state. He is now totally blind, and at the time of the institution of the proceedings and at the time of an earlier application to this Court in January 2001 he spoke with great difficulty, was unable to walk, dress, feed or toilet himself without assistance. He needed 24-hour care. 5. He has continued to reside at home with the applicant and her family to date. Happily his physical and mental state has considerably improved. In a recent medical report which was made available to this Court Dr. Miriam Gannon, Consultant Psychiatrist, noted that Mr K. was physically much better and more independent. Dr. Gannon noticed that there was an improvement in his short term memory and she was informed that there had been a marked improvement in the behavioural problems that were present at the time of her previous assessment. The Court was also informed that while Mr K. still needed a great deal of care he was now much improved as far as his day-to-day life was concerned. He was able to attend in Court on the hearing of the present appeal. 6. There is no doubt, however, that the applicant continues to require considerable nursing and general care assistance to enable Mr K. to remain resident at home and to be cared for there. Despite the excellent and helpful management of his own funds by the Office of Wards of Court it has for some time been clear that these funds are by no means sufficient to provide for him in the light of the second injury he sustained and its continuing effects. The applicant has accordingly sought financial and other assistance from the Health Board in order to enable Mr K. to continue to be cared for in his present home environment. 7. Since in or about April 2000 the applicant has been in communication with the Health Board in an effort to secure the type of financial and other assistance which would enable her to care for Mr K. in the way in which she feels is best for him. There is no need to describe the history of these communications in detail; suffice it to say that the Health Board now accepts that it would not be in the interests of Mr K. to transfer him to institutional accommodation. 8. As noted by the learned High Court judge in his judgment, the Health Board in a letter dated 18th January 2001 made a comprehensive proposal for the assistance the Board would offer to the applicant for the future care of Mr K. as follows:"We refer to the above matter and to previous correspondence.9. The remainder of the letter is not relevant to the instant appeal. 10. Since that date, as this Court was informed by counsel for the Health Board, a further offer of a six week respite care period has been made by the Health Board. 11. The applicant, however, was not satisfied with the offer made by the Health Board. In summary, the applicant wishes that Mr K's present care arrangements should be continued but should be financed by the Health Board. It appears that the cost of these arrangements is in or about €1,200 per week. The applicant also complained that no offer was made to cover the expenditure which had been incurred by her to date in the care of her brother.
The Health Board have now completed their review assessment in relation to the care and circumstances of P.K. The decision of the Board is to recommend that the present care plan in this case be revised and implemented. Our client has not been involved in the present home care arrangement. The Board will propose as follows:
1. That P.K. continues to reside in his family home for the present.2. That the present arrangement whereby the private current carers employed to care for P.K. cease.3. That P.K. avail of the Board's Care Attendants Scheme who would provide care to him which would be supervised and quality assured by a Senior Nurse Manager of the Board.4. The Board considers that, in the circumstances of this case, these services should be available for Monday to Friday between the hours of 9.30 a.m. and 6.30 p.m. In addition the Board will recommend that this care arrangement would allow for one late evening per week until the hour of 9 p.m. and a weekend day per month from the hour of 9.30 a.m. to 6.30 p.m., being a Saturday or a Sunday.5. The Board considers that P.K. would benefit significantly from a social rehabilitation process. In that regard P. is presently attending a Day Activation Unit one morning per week. The Board recommends, in order to promote his welfare, that in the medium to long term he should attend such a Unit for two or possibly three days a week.6. The Board also recommend that P.K. should avail of the Board's Respite Service, The Board would suggest a minimum period of two weeks per annum. In view of P.K's circumstances, to be in a position to engage with this service and taking into account the importance of adapting to a new environment, the Board would recommend a day programme at a Respite Centre to anticipate and alleviate this possible difficulty.7. The Board also recommends making available as appropriate and as and when necessary community nursing services, physiotherapy and occupational therapy.The provision of these services will be subject to a review on a periodic basis having regard to the necessity to take into account any material changes that may arise in the circumstances of this situation.
The Board considers having regard to the position of all the interested parties, that the plan outlined in this letter meets the care requirements of P.K. We shall be glad to have your view on this matter in early course…"
THE PROCEEDINGS
12. Since their inception these proceedings have had a somewhat complicated history. While the proceedings principally concerned the care to be provided by the Health Board to the Ward, Mr. P.K., the applicant in the proceedings is the Ward's sister, C.K., and the proceedings were taken by way of judicial review against the Northern Area Health Board. In her statement grounding the application for judicial review the applicant principally sought an injunction or order of mandamus directing that the respondent provide adequate community care services to P.K. in his home so that his existing and future needs and "just quality of life" (sic) could be maintained, or alternatively an order that the Health Board should fund the provision of such services which at that time cost approximately £750.00 per week. Declaratory orders were also sought. These reliefs were sought pursuant to section 56 of the Health Act 1970 (later amended to include sections 60 and 61 of that Act), article 40.1, 40.3.1 and 40.3.2 of the Constitution, and the inherent parens patriae jurisdiction to safeguard the interests of those who are not able to look after their own interests. 13. The applicant claimed to have locus standi to bring the proceedings arising out of her position as the sister of P.K., as one of the committee of his wardship and as the person who had assumed principal responsibility for his care in recent years. 14. Leave was granted by Kelly J. on 13th April 2000. In addition Kelly J. made an order joining the Minister for Health and Children and the Attorney General as notice parties to the proceedings. 15. The respondent Northern Area Health Board filed grounds of opposition on 24th May 2000, as did the notice parties on 31st May 2000. Both the respondent and the notice parties claimed inter alia that the applicant had no locus standi. The respondent argued that by reason of the fact that the concerned party was a Ward of Court and by virtue of the provisions of section 9 of the Courts (Supplemental Provisions) Act 1961 the responsibility for the exercise and vindication of the statutory and constitutional rights of the Ward of Court rested on the President of the High Court. The notice parties contended that the proceedings disclosed no cause of action against them. 16. The matter came on by way of notice of motion before Kelly J. on 2nd June 2000. Having heard arguments from counsel regarding the issue of jurisdiction Kelly J. ordered that the proceedings be stayed pending an application for directions being made to the President of the High Court. 17. The applicant accordingly sought directions from the President of the High Court, including both the extension of the grounds of relief to include sections 60 and 61 of the Health Act 1970 and leave for C.K. to prosecute the proceedings as the Ward's committee, together with other directions including interim provision for the Ward's upkeep. On 9th June 2000 the matter was heard by Morris P. in the Wards of Court List. The learned President refused the relief sought. In an ex-tempore judgment he held that the proceedings were flawed from the outset and that the correct procedure would have been to submit an application to him, supported by the relevant data, seeking directions to institute proceedings in the name of the Ward. He held that the applicant was solely the committee of the person of the Ward, whereas the General Solicitor of Wards of Court was the committee of the Ward's estate. He appeared to be concerned about an alleged conflict of interest between the applicant and the Ward. (This matter is not in any way relevant to the present appeal.) 18. The applicant appealed to this Court, which heard the matter on 18th December 2000. Judgment was reserved. On 19th January 2001 this Court ordered that the order of the High Court be set aside and in lieu thereof that the application on behalf of the applicant be remitted to the President of the High Court in accordance with the judgment of this Court. In her judgment (at page 10) Denham J. stated:-"This case has been trapped in a procedural net and should be released immediately. It is entirely inappropriate when the issue is the care of a Ward of Court that a matter, which is determined as urgent in April 2000, in relation to his care is caught in a sea of procedural argument."19. Having surveyed the provisions of the laws relating to lunacy, pointing out that the language of those laws alone indicated their antiquity, the learned judge held that the issue of the care of the Ward was a matter for the committee of the person. She concluded:
"This matter should be brought before the President of the High Court as soon as possible. The parties, apart from the applicant, are State bodies. It is appropriate that resolution of this matter be obtained speedily and without further delay. The President has indicated that he would hear immediately any application regarding contemplated proceedings. I would order that the matter be remitted to the President so that he may consider the current situation, the merits of the issue as to whether the Ward should be part of the judicial review proceedings, whether there should be separate proceedings, indeed whether there should be any proceedings and of what type and against whom, and to give whatever directions he deems appropriate."20. On 22nd January 2001 a further application for directions was made to Morris P. Through the Registrar of Wards of Court the learned President endeavoured to reach an agreed arrangement between the parties as to the financing of the care of the Ward. This endeavour unfortunately did not succeed and on 29th January 2001 Morris P. made an order authorising C.K. the committee of the person of the Ward to continue her judicial review proceedings. On 30th April 2001 Kelly J. made a further order permitting the extension of the grounds for leave to include sections 60 and 61 of the Health Act 1970. 21. Following the filing of further pleadings and affidavits the applicant's judicial review proceedings were heard by Finnegan P. on 3rd October 2001. The learned President reserved his judgment. On 9th May 2002 Finnegan P., delivered his judgment and on 14th July 2002 he made an order declaring that the respondent had failed to satisfy the applicant's entitlement under the Health Act 1970 sections 56 and 60. He also granted the applicant her costs. A stay was placed on the costs order on condition that the respondent would maintain the then current care arrangements for the Ward. 22. It is against this judgment and order that the respondent has appealed. In its notice of appeal the respondent sets out the grounds of appeal as follows:-
"1. The provisions of section 56 of the Health Act 1970 as amended do not give rise to individually enforceable statutory rights in the applicant.
2. The provisions of section 60 of the Health Act 1970 as amended do not give rise to individually enforceable statutory rights in the applicant.
3. The provisions of section 56 of the Health Act 1970, as amended, impose only a general obligation on the Health Board to provide the services specified in that section for the benefit of those members of the public as a whole who are eligible, either in whole or in part, for those services.
4. The provisions of section 60 of the Health Act 1970, as amended, impose only a general obligation on a Health Board to provide the services specified in that section for the benefit of those members of the public as a whole, who are eligible, either in whole or in part for those services.
5. The statutory duty imposed on a Health Board pursuant to the provisions of section 56 of the Health Act 1970, as amended, are qualified by the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996.
6. The statutory duty imposed on a Health Board pursuant to the provisions of section 50 of the Health Act 1970 as amended are qualified by the provisions of section 2 of the Health (Amendment) (No. 3) Act, 1996.
7. The services, pursuant to section 56 of the Health Act 1970,as amended, sought to be provided by the respondent/appellant to the applicant were adequate, appropriate and reasonable having regard
to:
(a) the assessment of the needs of the applicant
(b) the prioritization of the needs of the applicant and
(c) the current availability of scarce financial and related resources available to the respondent/appellant.
8. The services, pursuant to section 60 of the Health Act 1970, as amended, sought to be provided by the respondent/appellant were adequate, appropriate and reasonable having regard to:
(d) the assessment of the needs of the applicant(e) the prioritization of the needs of the applicant, and(f) the current availability of scarce financial and related resources available to the respondent/appellant.
9. The order dated the 13th day of April 2000 granting leave to the applicant to seek an order by way of judicial review did not include a ground that the decisions of the respondent/appellant were neither adequate, appropriate nor reasonable.
23. A Notice to Vary was brought by the notice parties in which the following grounds were set out:-10. The judgment of the learned trial judge does not indicate the factual basis upon which the decisions of the respondent/appellant were neither adequate, appropriate nor reasonable."
"1. The learned trial judge erred in law and in his interpretation of section 56(1) of the Health Act 1970 in his finding that out-patient services within the meaning of that section are identical to in-patient services within the meaning of section 51 of the Act, save that out-patient services are provided at home.
2. Further, the learned trial judge erred in law and in his interpretation of section 56(2) of the Health Act 1970 in his finding that a Health Board was obliged pursuant to the said section to make available to persons in the home services identical in nature to those provided as in-patient services to persons with full eligibility.
24. A notice to vary was also brought by the applicant. The only relief sought in this notice was a variation of the declaratory order of the High Court to include liberty to apply and this was not pursued before this Court.3. The learned trial judge erred in law and in his interpretation of section 60 of the said Act of 1970, in that he failed to have any or any sufficient regard for the necessity for the implementation of that section for the Minister to have had designated purposes within the meaning of that section."
THE STATUTORY PROVISIONS
25. Section 56 of the Health Act 1970, as amended by section 1 of the Health (Amendment) Act 1987 and section 7 of the Health (Amendment) Act 1991 provides that:-"56.-(1) For the purpose of this section 'out-patient services' means institutional services other than in-patient services provided at, or by persons attached to, a hospital or home and institutional services provided at a laboratory, clinic, health centre, or other similar premises, but does not include –
(a) the giving of any drug, medicine or other preparation, except where it is administered to the patient direct by a person providing the service or is for psychiatric treatment, or
(b) dental, ophthalmic or aural services.
(2) A health board shall, subject to any regulations relating to the services under this section made by virtue of subsection (5), make out-patient services available to persons with full eligibility and persons of limited eligibility.
(3) A health board shall make out-patient services without charge for children in respect of diseases and disabilities of a permanent or long term nature prescribed by the Minister with the consent of the Minister for Finance.
26. Sub-section (5) of section 56 provides for the making of relevant regulations in relation to these services by the Minister, including regulations fixing charges for various services.(4) A health board shall make out-patient services available without charge for children in respect of defects noticed at a health examination held pursuant to the services provided under section 66."
"In-patient services" are defined by section 51 of the Health Act 1970 as:
"51. In this Part 'in-patient services' means institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto."27. The words "institutional services" are not defined in the Health Act 1970. However, according to section 2 of the Health Act 1947:-
"..the expression 'institutional services' includes –
(a) maintenance in an institution
(b) diagnosis, advice and treatment at an institution,
(c) appliances and medicines and other preparations,
28. Section 60 of the Health Act 1970 provides as follows:(d) the use of special apparatus at an institution;"
"60. A health board shall, in relation to persons with full eligibility and such other categories of persons and for such purposes as may be specified by the Minister, provide without charge a nursing service to give to those persons advice and assistance on matters relating to their health and to assist them if they are sick."29. Section 61 of that Act provides:
"61-(1) A health board may make arrangements to assist in the maintenance at home of –
(a) a sick or infirm person or a dependant of such a person,
(b) a woman availing herself of a service under section 62, or receiving similar care, or a dependant of such a woman,
(c) a person who, but for the provision of a service for him under this section, would require to be maintained otherwise than at home,
either (as the chief executive of the board may determine in each case) without charge or at such charge as he considers appropriate.
30. Section 2 of the Health (Amendment) (No. 3) Act 1996 provides:-(2) In making a determination under subsection (1), the chief executive officer of a health board shall comply with any directions given by the Minister."
"2. (1) A health board, in performing the functions conferred on it by or under this Act or any other enactment, shall have regard to –
(a) the resources, wherever originating, that are available to the board for the purpose of such performance and the need to secure the most beneficial, effective and efficient use of such resources,
(b) the need for co-operation with voluntary bodies providing services, similar or ancillary to services which the health board may provide, to people residing in the functional area of the health board,
(c) the need for co-operation with, and the co-ordination of its activities with those of, other health boards, local authorities and public authorities, the performance of whose functions affect or may affect the health of the population of the functional area of the health board, and
(d) policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to the functions of the health board.
(2) The provisions of this section shall apply to both reserved functions and executive functions.
(3) Every enactment relating to a function of a health board shall be construed and have effect subject to the provisions of this section"
THE DECISION OF THE HIGH COURT
31. In his judgment the learned President of the High Court set out in some detail the history of the Ward, of the dealings of the applicant and her husband with the Health Board, and of the applicant's proceedings. He considered the question of the locus standi of the applicant. He held that insofar as the applicant originally sought to advance a claim for and on behalf of the Ward the same was not properly maintained. However, in the light of the order of Morris P. authorising the continuation of the proceedings he was satisfied that the action was properly before the Court and that no issue as to the locus standi of the applicant arose. 32. The learned President rejected the claims of the applicant based on the Constitution and this matter is no longer in issue. 33. Finnegan P. went on to consider the provisions of the Health Act 1970 as amended. Having set out sections 56, 60 and 61 of that Act together with the definition of "in-patient services" contained in section 51 (see above) the learned President said:"It seems to me therefore that out-patient services and in-patient services are identical in nature and scope save that the former are provided within the institution and the other being services of the like nature but provided at home. Section 56 (2) provides that a Health Board shall make available out-patient services without charge for persons with full eligibility: P.K. is a person with eligibility. The decision as to the services which ought to be provided in any particular case is an administrative one. However the decision as to the services to be provided must not be capricious or arbitrary. Further the decision as to the appropriate out-patient services must not be such that it could not reasonably have been arrived at within the sense of the term reasonable in the State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202. This Court acting on a judicial review application however is not to substitute its decisions for that of the decision maker merely because it considers that it would have made a different decision. The striking circumstance in this case is that no institutional provision is available as required by section 52 of the Act or at least is not available in any real sense because there are no places available and there is a long waiting list for places. If P.K. is to be provided for at all it must be by way of out-patient services. Notwithstanding the exceptionally high standard required by the State (Keegan) v Stardust Victims Compensation Tribunal I am satisfied that the out-patient services provided by the respondent at the date of the institution of these proceedings were neither adequate nor appropriate nor reasonable and the respondent was in breach of its statutory duty to P.K.34. Having regard to the fact that section 61 of the 1970 Act was regulated by the word "may" rather than the word "shall", Finnegan P. held that there was no statutory right to services under that section and that it was inappropriate for the Court to intervene insofar as a claim under that section was made. The learned judge went on to reject the applicant's claim based on the parens patriae jurisdiction of the Court. 35. In conclusion he stated that he had carefully considered the revised plan put forward by the respondent in the letter of 18th January 2001. He was satisfied that the proposals therein contained were insufficient to discharge the respondent's duty under sections 56 and 60 of the Health Act 1970. In making his declaratory order he had regard to the dicta of this Court in Jamie Sinnott a person of unsound mind no so found suing by his mother and next friend Catherine Kathryn Sinnott v The Minister for Education, Ireland and the Attorney General [2001] 2 IR 545.Section 60 likewise creates an obligation on the respondent to the extent of the obligation being the like of that under section 56 to do so to a reasonable extent. The nursing service provided was likewise not adequate, appropriate nor reasonable. The respondent was in breach of its statutory duty to P.K."
SUBMISSIONS OF COUNSEL
36. Senior Counsel for the Respondent/appellant ("the Health Board"), Mr McEnroy, informed the Court that the Health Board, in arguing the appeal, did so on the basis that the Board accepted that the Ward was deemed to have full eligibility under the Health Acts; he was the holder of a medical card. 37. In his submissions Mr McEnroy chiefly laid emphasis on the interpretation of the relevant sections of the Health Act 1970 as amended. He argued that the High Court judge erred in holding that in the terms of the said sections out-patient services were identical in nature and scope to in-patient services save that out-patient services were provided at home. He submitted that the decision of the High Court in respect of the Ward's claim to the services in question was incorrect as it was based on the misinterpretation of sections 56 and 60 of the 1970 Act. On the evidence the services sought on behalf of the Ward were not out-patient services at all but rather were home help services and a carer's allowance. 38. In regard to the High Court judge's finding that the out-patient services provided by the respondent at the date of the institution of the proceedings were not reasonable in the sense of the term reasonable in the State (Keegan) v Stardust Victims Compensation Tribunal Mr. McEnroy submitted that in her pleadings the applicant had not made a claim that the conduct of the Health Board was unreasonable. The applicant's claim was simple and clear – that the Health Board had not fulfilled its statutory duty under sections 56, 60 and 61 of the Health Act 1970. Even if it were to be accepted that the question of unreasonableness arose, the conduct of the Health Board in regard to the Ward was far from being unreasonable as defined in the well known and much quoted judgments in The State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanala [1993] 1 IR 39. 39. Mr McEnroy also stressed the importance of section 2 of the Health (Amendment) (No. 3) Act 1996 (quoted above). The Health Board's resources were limited and it had to work within the limits of those resources as set out in that section. In the instant case, as set out in section 2 of the 1996 Act, the Health Board had assessed the needs of the Ward, had rationally and lawfully had regard to the then current levels of availability of scarce resources and had correctly and lawfully made a determination of the level of service provision to be afforded to the Ward. Mr McEnroy submitted that the Health Board had the professional competence, expertise and experience necessary to carry out these functions and that this was a lawful and intra vires performance of the functions imposed on it by the Health Acts. The intention of the Oireachtas as expressed in the Health Acts would be frustrated if individual applicants could successfully move the Court to interfere in the respondent's prioritization and rationing of resources. 40. Senior counsel for the notice parties, Mr McDonagh adopted the submissions of Mr McEnroy, stressing in particular the issues relevant to the interpretation of sections 56 and 60 of the 1970 Act. 41. Senior counsel for the applicant, Dr. Forde, relied on the decisions of this Court in Brady v Cavan County Council [1999] 4 IR 99 and Spruyt and Wates v Southern Health Board (Supreme Court unreported 14th October 1988). He submitted that sections 56 and 60 were couched in mandatory terms and that it was the clear statutory duty of the Health Board to provide the necessary services for the Ward. The learned High Court judge had correctly interpreted the sections in holding that there was equivalence between out-patient services and in-patient services. 42. Following Dr. Forde, junior counsel for the applicant, Ms Hewson, referred to the wording "services provided at, or by persons attached to, a hospital or home" in section 56(1) of the Act of 1970. She submitted that unless the words "or by persons attached to" were surplusage they must be taken to envisage services being provided by, for example, nurses to persons in their own homes.CONCLUSIONS
43. In her judicial review proceedings the applicant, on behalf of the Ward, seeks an order directing the Health Board to provide "community care services" to the Ward, the precise nature of these services "to be determined at the trial of this application for judicial review". In the alternative the applicant seeks funding from the Health Board to provide such services. While the precise nature of the services sought are thus not delineated in the proceedings, it is clear that they are services to be provided in the Ward's own home and not in a hospital or other institution. 44. All the available medical evidence goes to show that it is in the Ward's physical and psychological interests to continue to be cared for in his own home. All parties to the proceedings accept this, and happily the most recent medical report, dated 28th February 2003, from Dr. Miriam Gannon, confirms that the Ward has made considerable progress and that his condition is much improved. 45. The applicant grounds her claim straightforwardly on the provisions of sections 56, 60 and 61 of the Health Act 1970, the provisions of Article 40 of the Constitution and the parens patriae jurisdiction of the Court. The learned President of the High Court found in her favour as regards the duties of the Health Board under sections 56 and 60 of the Act of 1970. He rejected her claims pursuant to section 61 of the 1970 Act, Article 40 and the parens patriae jurisdiction. There is no appeal or notice to vary concerning these latter findings. This appeal, therefore, concerns solely the trial judge's findings concerning sections 56 and 60 of the Act of 1970. Both sections have been set out earlier in this judgment. Section 56 deals with "out-patient services"; section 60 deals with "home nursing" services. 46. Crucial to the ultimate decision of the trial judge as to the services to be provided by the Health Board under section 56 was his finding (at page 18 of his judgment) that "out-patient services and in-patient services are identical in nature and scope save that the former are provided within the institution and the others being services of the like nature but provided at home." While the learned judge does not fully analyse his interpretation of section 60 of the Act, it appears to me that by his use (at page 19) of the phrase "section 60 likewise creates an obligation on the respondent" (my emphasis) Finnegan P. infers that the nursing services to be provided in the Ward's home are to be in principle equivalent to those that would be provided for him in institutional care. 47. Both the respondent and the notice parties argue that this interpretation of sections 56 and 60 is basically an error – out-patient services and home nursing services are not, and never were, envisaged as being a home based equivalent of services to be provided in a hospital or other institution. 48. It is clear, therefore, that the question of the interpretation of these relevant sections is the first matter to be considered by this Court in the course of the present appeal. The matter of the reasonableness or otherwise of the services provided or proposed by the Health Board can be considered only in the light of the correct interpretation of the statutory provisions. 49. In her judgment in Howard v Commissioners for Public Works [1994] 1 IR 101 (at page 162) Denham J. stated:"Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words."50. This approach has been well established in the decisions of this Court. Most recently perhaps, I considered this principle of construction at pages 31 to 40 of my judgment in D.B.v The Minister for Health and Children and the Hepatitis C Compensation Tribunal (Supreme Court unreported 26th March 2003). 51. It is also well settled law that the individual sections of a statute should be interpreted in the context of the statute as a whole or, where that is so provided by the Oireachtas, in the context of a number of statutes which are to be construed together. 52. Section 1(3) of the Health Act 1970 provides that the Health Acts 1947 to 1970 are to be construed as one Act. Section 2 of the Health Act 1947 provides inter alia:
"…the expression 'institutional services' includes -53. It seems clear that the legislature intended that the words "institutional services" in sections 51 and 56 of the 1970 Act are to bear the same meaning of the same words in the 1947 Act. 54. Sections 51 and 56 of the Act of 1970 form part of Chapter II of Part IV of the Act. This Chapter is headed "Hospital In-Patient and Out-Patient Services". As set out above section 51 defines "in-patient services" as meaning "institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto." Section 52 goes on to provide at subsection (1) that these in-patient services are to be made available for persons with full eligibility and persons with limited eligibility. Thus, the in-patient "institutional services" are to be provided not alone in a hospital as such but also in a convalescent home or a home for the mentally or physically disabled. The "home" referred to here is, of course, an institutional home in which patients or inmates reside on a temporary or permanent basis. It is not the ordinary home of an individual. 55. Section 56(1) provides inter alia that for the purposes of the section "out-patient services" means "institutional services other than in-patient services provided at….a hospital or a home…." 56. It appears that in interpreting the subsection the learned trial judge had regard to this part of the wording in isolation from the remainder of the section and from the surrounding sections. It seems clear that his understanding of the word "home" in section 56(1) was that it referred to the ordinary home of an individual and that thus the out-patient services to be provided to the Ward were to be provided for him not alone at a hospital or institution but at his own home. In this, in my view, the learned President erred. 57. In construing section 56 (1) as a whole, and in particular construing it in the context of section 51, it is clear that the "home" at which out-patient services are to be provided is an institutional home, such as a convalescent home or disabled persons' home as referred to in section 51. If this interpretation is accepted, the meaning of section 56 falls into place and the section describes what are normally considered as out-patient services – the situation where a person who is otherwise resident at his or her own home attends at a hospital, health centre, clinic or other institution to obtain such medical services as x-rays, dressing of minor wounds, clinical tests and the like. The words of the section then assume their "ordinary and natural sense" (see Craies on Statute Law (1971) (7th edition) at page 65). 58. This understanding of the word "home" in the subsection is also consistent with the meaning of "institutional services" as set out in section 2 of the Health Act 1947, which makes it clear that such services (other than the provision of appliances, medicines and other preparations) are to be provided "at an institution". (The provision of medicines, etc., to eligible persons, including the Ward in the instant case, is, of course, covered by the Medical Card scheme). 59. In considering the submission on behalf of the applicant that services provided "by persons attached to" a hospital or home must envisage the provision of these services at a person's own residence the definition of "institutional services" in section 2 of the 1947 Act is also relevant. Under section 56(1) of the Act of 1970 the services that are to be provided "by persons attached to" a hospital or home are "institutional services". As I have already noted, under section 2 of the 1947 Act these are services to be provided "at an institution". It seems clear, therefore, that the phrase "by persons attached to" does not imply the provision of services at an individual's own home. However, this need not mean that the phrase is surplusage. It could well be envisaged, for example, that a particular consultant would provide out-patient services at more than one hospital without necessarily being a member of the staff of all, or indeed any, at the institutions concerned. Alternatively laboratory or pathology services could be provided for, say, a nursing or convalescent home by the staff of a nearby hospital. These are mere examples but it appears to me that there is no great difficulty in attributing meaning to the phrase used in the section without implying that institutional services are to be provided in a person's own home. 60. In my view section 56 of the Act of 1970, when taken in its context, cannot be taken to mean that the Health Board must provide for the Ward in his own home the equivalent care and maintenance service both medical and practical that he would receive as an in-patient in a hospital. The section provides for the establishment of an out-patient service, in the normal and ordinary sense of the words, at or attached to hospitals and other institutions. 61. In this context the wording of section 56(1) may be contrasted with that of section 61 of the 1970 Act (quoted above). This section enables the Health Board to make arrangements to "assist in the maintenance at home" of sick and infirm persons and in particular under section 61(1)(c) of "a person who, but for the provision of a service for him under this section, would require to be maintained otherwise than at home." It is clear that the words "at home" in this section refer to the person's own residence as opposed to an institutional home. Section 61(1)(c) applies precisely to the circumstances of the Ward in the instant case. The assistance which the Health Board may give under section 61 may be given either without charge or at such charge as the chief executive officer of the Health Board considers appropriate. In deciding what charge, if any, should be made for this assistance the chief executive officer must comply with any directions given by the Minister for Health and Children. 62. As was correctly pointed out by the learned President in his judgment the provision of services under section 61 is not mandatory and it was therefore "a matter of policy for the respondent and having regard to the terms of the section for the Minister if any such services should be provided and if provided to what extent" (page 19 of judgment). In the context of the instant case, however, section 61 empowers the Health Board to provide the services which they now propose for the assistance of the Ward in his own home. 63. I turn now to section 60 of the Act of 1970, which is included in the part of the Act dealing with general medical services. The learned trial judge deals somewhat briefly with this section in his judgment. No reference is made to the provision that the nursing service that is to be provided without charge must be provided "for such purposes as may be specified by the Minister". Presumably the purposes and ambit of this nursing service must have been set out and established at some time, whether by statutory instrument or otherwise, by the Minister. No material whatever in this regard was put before this Court by any of the parties to the appeal. The statutory and other parameters of the service remain unknown to the Court. 64. In the wording of the section itself the purpose of the nursing service is to give to eligible persons "advice and assistance on matters relating to their health and to assist them if they are sick". In the ordinary and natural sense of these words I do not consider that what is intended is the provision of a long term virtually full-time (or even extensive part-time) nursing service for disabled persons in their own homes. I would accept the contention of the respondent and the notice parties that what is in question is an advice and assistance service as is at present provided by the Public Health Nurse Scheme. 65. In conclusion, in my view neither section 56 nor section 60 of the Act of 1970 provide a ground for the orders sought by the applicant in her judicial review proceedings. Given the interpretation of the sections set out above, the question of the reasonableness of the Health Board's actions does not arise. I would allow the appeal and refuse the relief sought. 66. I would add, however, that it is clear that the applicant has a grave need for assistance in caring for the Ward. The applicant and her family have given devoted and untiring care to the Ward, at times in very difficult circumstances. As a result both the Ward's health and his quality of life have greatly improved. The Ward's estate, through no fault of his own or of his committee, the General Solicitor, is nearing exhaustion. Under section 61 of the Act of 1970 the Health Board may make arrangements to assist in the maintenance at home of a sick or infirm person. It is abundantly clear that it is in the interests of the Ward that he should be maintained in his own home and, indeed, common sense would suggest that for the Health Board the course of assisting him at home is probably a more economical course than that of maintaining him in an institution. In their most recent proposals the Health Board have made a substantial effort to put this discretionary power under section 61 into effect. It is to be hoped and indeed anticipated that the Board will continue in its efforts to give material assistance both to the Ward and to the applicant.(a) maintenance in an institution,(b) diagnosis, advice and treatment at an institution,(c) appliances and medicines and other preparations,(d) the use of special apparatus at an institution';"
