By Ann O'Loughlin
The Minister for Health must urgently devise an “administrative solution” to a serious problem confronting the commission investigating the treatment of the intellectually disabled woman known as Grace, Commission lawyers have told the High Court.
The problem is, due to a lacuna in the relevant law, Grace cannot recover her legal costs of representation and of her involvement in the commission despite her being at the centre of it.
The President of the High Court, Mr Justice Peter Kelly, has directed a hearing on Thursday aimed at ensuring the problem is resolved. There was “no way to cut this Gordian knot” except to make the Minister a party to a formal application, he said.
The Commission was set up to carry out a function but, due to a lacuna in the law, that will be frustrated, he said. As an amendment to the law was unlikely to happen soon, an administrative solution would have to be fashioned.
The judge was told by Raymond Comyn SC, for the Commission, correspondence received today from the Department of Health about the matter has given “great comfort” to the Commission and hopefully would address the concerns.
The judge, who last April approved a €6.3m HSE-funded settlement package for Grace to ensure lifelong care for her, said he had asked the Commission to ask its appointing minister, the Minister for Health, to clarify the matter as his anxiety was Grace’s funds will be used only to provide for her needs.
He also noted, when approving the package, he had also expressed the view a range of matters concerning her treatment required to be investigated. He had described the treatment of the "literally voiceless" Grace, who was entrusted to HSE care as a young child until aged in her early thirties, as “not just shocking, but a scandal”, particularly as it continued into the 21st century, and involved "abdication" of responsibility by the relevant health board and State agencies.
Grace was placed with a foster family in the south east in 1989. Despite a 1996 health board decision she and other children be removed from them following an allegation a child was sexually abused, evidence of physical abuse and neglect of Grace, as well as suggestions of sexual abuse, she, the most vulnerable child, was left there for another 13 years till 2009, the judge noted.
Because Grace is a ward of court, her case was before the judge arising from issues raised by Sara Moorhead SC, for the general solicitor of wards of court, concerning her representation before the Commission, and by the Commission itself.
Mr Comyn said the Commission considers the only practical way of speedily addressing the issue of recovery of Grace’s legal costs is for the Minister to fashion an administrative solution to it.
Ms Moorhead said the Commission had identified a lacuna in the relevant legislation – the Commission of Inquiry Act 2004 – which meant costs of work done on behalf of Grace and her representation before the Commission were not recoverable for reasons including she is not a person whose good name or reputation will be affected.
Ms Moorhead said the general solicitor is very concerned about this as the wards of court office, which has unique knowledge concerning Grace, had heard nothing about its costs being covered or about costs of Grace’s representation.
Mr Comyn said the Commission concurred completely with what the judge had said about use of Grace’s funds but thought the letter received today from the Minister would satisfy the court’s concerns. The Commission believes the Minster should be involved in the proceedings and outline his submissions as to how the matter can be resolved and it wanted the issue addressed this week, counsel added.
The judge said, unless the problem is solved, the work of the commission will be brought to a halt and that was of concern because of his view several matters required to be investigated.
Mr Comyn said Grace can be represented but the issue was about recovering her costs. Because the Commission is still at investigative stage, decisions about representation are premature at this stage, he added.
The Commission was also very concerned about matters referred to in an article in today’s Examiner newspaper which are within the private investigative purview of the Commission, counsel said. It was contemplating what to do about the article.
Earlier, the judge was told the Commission has sought documents concerning Grace held by the wards of court office and additional documents from the HSE. The HSE has already provided significant documents, he was told.
