The High Court yesterday rejected an application by a couple for an injunction restraining the medical examination of their 22-year-old disabled son, with the assistance of gardaí if necessary, as part of procedures which could result in his being made a ward of court. Mary Carolan reports.
Ms Bernadette and Mr Francis Dolan snr, of Ballydowd, Lucan, Co Dublin, had sought the injunction on behalf of their son, Francis, who has cerebral palsy and who in October 2001 secured a £3 million settlement of his High Court action alleging negligence in the circumstances of his birth. The settlement was without admission of liability.
The Dolans said they objected to Francis being assessed as an "idiot, lunatic or person of unsound mind" under the Lunacy Regulation (Ireland) Act, 1871, for the purpose of his being made a ward of court in order to afford High Court protection for his financial award.
When no application was made by the Dolans to have Francis made a ward of court and the parents made clear their objection to wardship, procedures which could lead to Francis being made a ward of court were initiated in May 2003 at the direction of the President of the High Court.
The Dolans have brought legal proceedings against the Registrar and State challenging those procedures.
Pending the hearing of the full action, at a date yet to be fixed, the Dolans had sought an interlocutory injunction restraining the medical examination of Francis as part of the procedures.
The court heard that a medical examiner had, pursuant to an order of the President of the High Court, arrived at the Dolans' home with gardaí last month in order to carry out that exam, and that the examiner wished to return to complete his examination. Ruling on the injunction application yesterday, Mr Justice Kelly said the Dolans had to establish that there was a serious issue to be tried, that damages were not an adequate remedy and that the balance of convenience favoured the granting of the order.
However, the Dolans had to initially establish that the court had jurisdiction to grant the injunction sought.
The judge held they had failed to do so as the order directing the medical examination of Francis had been made by the President of the High Court exercising a judicial function and not, as the parents had contended, an administrative function.
The judge said he also believed the Dolans had misconstrued what was involved in wardship. Wardship was a jurisdiction which attempted to enable the administration of the property of a person who could not manage their own affairs.
Given Mr Dolan's excellent family, there was no basis for their apprehension that any order would be made which would remove Francis from his family or interfere with the family unit.
The Dolans had also expressed concern that Francis would be labelled an "idiot", "lunatic" or "person of unsound mind" as a requirement for being placed in wardship, the judge noted. However, the terms "idiot" and "lunatic" were no longer used, which was only right as they were terms belonging to "a bygone age".
The judge said the parents were not objecting to the medical exam per se but objected to it having legal consequences in the sense it could lead to Francis being made a ward of court.
However, there would be a full hearing regarding any wardship procedures. Francis must also have had many medical exams and there would be no need for this exam to be distressing if there was co-operation from the family.
If any legal wrong was done, damages would be an adequate remedy.
The judge noted that two years and five months had passed since the High Court had approved the settlement and, because Francis had not been made a ward of court, that money remained on deposit.
The judge refused the injunction application and adjourned the matter to allow the parties to consider his decision and to make final orders regarding the carrying out of the medical exam.