Internet Explorer 11 (IE11) is not supported. For the best experience please open using Chrome, Firefox, Safari or MS Edge

The recent judgment of the Court of Appeal in the case of A.C. v HSE [2018] IECA 217 may have a significant impact on the way that hospitals manage vulnerable patients in their care. The judgment has resulted in some welcome dialogue as to the current status of the law although it may be appealed.


In October 2015, AC was admitted to Cork University Hospital (CUH) with a broken hip. In December 2015, AC was discharged to her son but subsequently fell again and broke her other hip and was readmitted to CUH.

From early 2016 onwards, AC was largely bed bound, variably incontinent, at significant risk of pressure sores, and required full assistance with the activities of daily living. The multi-disciplinary team (MDT) charged with her care was of the view that she did not have the capacity to engage in decision making regarding her management.

AC’s son and daughter were of the view that AC should be released into their care, however the MDT and social work department at the hospital were concerned with their attitude, behaviour and ability to care for their mother.

In June 2016, AC signed a letter which indicated that she wished to be discharged from the hospital and that all costs associated with her rehabilitation at the home of her son should be the responsibility and liability of the hospital and the HSE. The MDT was of the firm view that AC did not understand the implications of her own discharge. The police were asked to provide security to assist in preventing AC’s family from removing her from the ward.

AC’s son made two applications to the High Court for an enquiry into the legalities of what he considered to be the unlawful detention of his mother. Both applications were rejected by the High Court and AC was taken into wardship in August 2016. AC’s son appealed to the Court of Appeal.

The ruling

The Court of Appeal found that the failure to allow the patient to leave the hospital in the company of her son, who was the applicant in the inquiry pursuant to Article 40.4.2. of the Constitution, amounted to a detention of the patient. The Court concluded that it was an unlawful detention:

“The fact remains, however, that CUH had no power to prevent Ms. AC from leaving the premises once she expressed her wish to do so. In this context it mattered not that this decision to refuse permission to leave was considered to be in her best interests.”

Potential for broad interpretation

The scope of this judgment is clearly significant to medical practitioners. In particular, the following issues arise:

  • Will the judgment impact only elderly patients who lack capacity, but have not been admitted to wardship, and who express a desire to leave hospital in circumstances where the treating clinicians do not believe it is in their best interests to do so, or
  • Will it be interpreted more widely and impact upon the ability of physicians to treat a patient under the doctrine of necessity where that patient lacks capacity to consent to necessary treatment

If the correct interpretation of this judgment is that medical professionals must now give in to the wishes of a patient, even if they consider them to lack capacity, then this will inevitably cause a great deal of difficulty in the provision of medical care to both elderly patients and in the context of an emergency situation.

Medical Council guidance

Regrettably, the Court of Appeal’s judgment makes no mention of the Medical Council’s Guide to Professional Conduct and Ethics. This Guide provides that where a patient lacks capacity to make a particular decision and there is no one with legal authority to make the decision on behalf of the patient, then a doctor will have to decide what treatment option is in the patient’s best interests.

The practicalities of this judgment on the ground

The judgment of the Court of Appeal in this case is recent, controversial and may or may not be looked at again by the Supreme Court on appeal. However, at present, implementing any change in how vulnerable patients are treated would be ill-advised given that the Medical Council’s Guidelines relating to the doctrine of necessity remain authoritative from the perspective of medical practitioners.

In cases of doubt or dispute, an expedited application for wardship including immediate interim relief, can be made to the courts in the usual way.

For more information on this judgment, contact a member of our Healthcare & Medical Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Share this: