The High Court has dismissed an injunction application made against the Health Service Executive (HSE) by a woman with multiple disabilities who claimed her rights were being breached.
The woman had sought a mandatory order, to be kept in place until her wider court case is complete, directing the HSE to take all necessary steps to ensure appropriate hours of personal care are provided to her. She also wanted an injunction ordering the HSE to take all necessary steps to ensure the care provided is on a “permanent and reliable basis”.
Ms Justice Nuala Butler said she had a “genuine concern” about making mandatory orders prior to the full case hearing in a situation where it is “difficult, if not impossible, for the HSE to know what to do to comply” with them.
She said the HSE has put evidence before the court as to its efforts to secure alternative care providers to overcome the difficulties, arising every alternate weekend, that affect its ability to provide three care visits per day. Other periods are unaffected by the issue.
The woman, who has multiple health and mobility issues, lives at home and urgently wanted her care regime of thrice-daily visits on weekends to continue, her counsel, Clíona Kimber SC told the court previously.
Since October an issue has arisen, and recently the HSE has only been able to provide two three-hour visits per day on every alternate weekend. The situation, Ms Kimber submitted, was interfering with various rights, including the right to live with dignity.
Counsel for the HSE, Shane Murphy SC, said his client did not dispute the level and type of care the woman desires and which is set out in her care plan, but it has difficulty providing it at present due to an “acute crisis” in relation to staffing.
He said the HSE continues to provide services to the woman and the present arrangement, which the woman was protesting against, was sorted up until January 23rd. However, there is also an ongoing effort on a daily basis to try to rectify and improve the situation, he said.
Delivering her judgment, Ms Justice Butler noted the HSE is not withdrawing the care plan but is stating that there is an inability on the ground to recruit staff in the area to provide care consistent with the plan. The plaintiff’s basic needs and the desired outcome for her care are not in dispute between the parties, she added.
The judge expressed her sympathies for the woman and stressed that her judgment is not a reflection of disbelief about the rights the woman claims or the difficulty of her situation.
