High Court case unable to go ahead as no judge is available

An action by the parents of a brain-damaged man against the Southern Health Board could not proceed at the High Court yesterday because no judges were available.

Mr Justice McCracken told Mr Aindrias O Caoimh SC, for Mr Bryan Cotter, that he had no choice but to adjourn the matter to the next court list to fix dates. He directed the case be given priority.

The Cotter case is one of several unable to proceed at the High Court because of an insufficient number of judges. Several judges are hearing long-running cases of alleged medical negligence while other judges have been assigned to tribunals. Two new judicial positions have been advertised.

In judicial review proceedings taken by Mr David Cotter, of Model Cottages, Blarney Street, Cork, on behalf of his son Bryan (21), orders are sought directing the Southern Health Board (SHB) to provide equipment and services which the man's parents say are necessary to care for him properly in their home.

Bryan was diagnosed braindamaged in 1992 and is now wheelchair-bound. In 1992 he was admitted, on medical advice, to the COPE Foundation at Montenotte, Cork, a voluntary body which cares for persons with physical and mental disabilities for the purposes of assessment.

Mr David Cotter claims that Bryan's health deteriorated drastically at the COPE Foundation, and he required intensive care treatment at Cork University Hospital. He was treated both at COPE and the hospital for months.

His father claims that Bryan's physical and mental health deteriorated to such an extent at COPE from 1992 to 1997 that his parents eventually had to remove him. It is claimed Bryan weighed just four-and-a-half stone and was not eating when he was removed from COPE in 1997 but now is eating and weighs 10.5 st. It is also alleged he was on a large amount of medication and was depressed, unreactive and unemotional in COPE, whereas now his medication was reduced and he has begun to respond to his parents and other family members. Since April 1997 Bryan has lived primarily at his family home which his parents specially adapted for his needs. An extension was built with grant assistance from the Department of the Environment.

Mr Cotter says 24-hour care is provided for Bryan by his family, and by carers and nurse assistants who are paid through loans.

Mr Cotter said he had asked the SHB for assistance with the costs of care and provision of necessary aids but claimed the board had not responded in any meaningful way. The manner of its response was such as to constitute a refusal to provide the equipment, service and financial assistance sought.

It is understood the SHB will plead that any deterioration in Bryan's condition while at COPE did not occur through any failure on COPE's part and will contend that the services required by Bryan are adequately provided by the COPE Foundation.

The board will also claim that it has fully discharged its responsibility towards Bryan by ensuring there is a place available for him at COPE or, should his family wish to care for him constantly, the board will provide respite care, day care including therapy services and, through COPE, a new home support service.

The board will also say it has provided aids and appliances and was prepared to consider all requests from his family with a view to affording him the best possible opportunity to live at home, subject to the provision of nursing and other specialist support services on a residential/day basis.

Although not a party to the action, the COPE Foundation has strongly rejected allegations that any mistreatment occurred while Bryan was in its care.