In an important decision with implications for all health boards, the High Court has ruled that the Northern Area Health Board was not entitled to make "capricious and arbitrary" decisions about the services it would provide to an elderly and brain-damaged man.
The President of the High Court, Mr Justice Finnegan, found the NAHB was in breach of its duty to the man and had failed to provide him with adequate, appropriate and reasonable out-patient services.
The man (61), who is a ward of court, is brain-damaged and visually impaired. He received substantial compensation for injuries sustained in a road accident 26 years ago but this has proved inadequate for his needs.
In his reserved judgment, delivered earlier this month, Mr Justice Finnegan found the NAHB had failed to provide adequate services to the man. The decision opened the possibility that a health board found in breach of duty in similar circumstances could be sued for damages. The man, who cannot be identified, lives with his sister, her husband and son in a house provided from compensation from the 1976 accident.
His sister brought an application before the court seeking, by way of judicial review, an injunction or order directing the NAHB to provide her brother with appropriate community care services. The cost of the care being provided by the man's sister is €952 a week and is beyond her or her brother's means.
In 1999 the man developed septicaemia, pneumonia and other complications. As a result he is now more disabled, is blind and has deteriorated mentally.
His sister had a care plan prepared which centred on his being cared for at his home. However, the court heard the level of care required would be impossible for his sister to provide alone as he needed 24-hour attendance. The Office of the Wards of Court provided funds for improvements to the house to take account of his disability.
Solicitors for the woman rejected care proposals advanced by the NAHB. These included a proposal that the man be placed in a nursing home if "all his resources" were used up. The board offered to provide €159 a week towards care. The man's sister's solicitors said this did not remotely meet the case.
The minimum fee for a nursing home was €571 a week, and the man's special needs would make the costs greater. A further offer of 35 hours' care per week at home was also rejected.
The board said it did not have services to replace the level of care which the man was receiving. That included 108 hours of privately paid professional carers at home and 30 hours of lay carers.
The board argued that its services must be within the context of the health Acts and that its funding was determined by the Minister for Health and Children. Within those constraints, it had tried to assist the man.
Mr Justice Finnegan noted that the board had changed its position last year, when it agreed the man could continue to live at home "for the present" and avail of its care scheme, available Monday to Friday between 9.30 a.m. and 6.30p.m., plus one "late evening" per week to 9 p.m. and a weekend day per month. The board had said it would, "when necessary", make available community nursing services, physiotherapy and occupational therapy. Those services would be subject to review.
Mr Justice Finnegan said it was clear the man's sister had incurred very considerable expense. But given the Supreme Court decision in the Sinnott case, it seemed she did not have a personal right of action in respect of such expense.
However, in this case the man, acting through a next friend, could maintain such an action.
He said Section 56 of the 1970 Health Act provided that a health board "shall" make available outpatient services without charge to people with full eligibility. This man was such a person. The decision as to the services to be provided must not be capricious or arbitrary. However, as no claim for damages had been advanced, no such award could be made.