By Aodhan O'Faolain
A woman who has brought a High Court action aimed at allowing her leave mandatory hotel quarantine, maybe released sometime today, the High Court has heard.
Mr Justice Brian O'Moore was told that if Emma Kelly latest test for Covid-19, taken earlier today is negative then she will be allowed leave the Crowne Plaza Airport Hotel in Dublin where she has been in quarantine since she came home from Dubai on April 3rd.
Ms Kelly - who is originally from West Waterford- claims that she should have been tested for Covid on Monday, which, if negative, would have allowed to her leave quarantine. She claims was not given that test delaying any release for at least another 24 hours.
Father's surgery
Ms Kelly, the court heard, had come home to support her mother after her father, who is scheduled to undergo major cancer surgery on Tuesday, was diagnosed with cancer.
Through her legal team Ms Kelly brought an application, before Mr Justice O’Moore, on Monday night for an inquiry into her detention under Article 40 of the Constitution.
The application is against hotel operators Tifco Ltd and Tifco Management Services (Ireland) Ltd, and the Minister for Health.
When the matter returned before the court on Tuesday Micheál P. O Higgins SC, for Ms Kelly, said his client received a note at 4-30am on Tuesday saying that she was to be tested.
That test was carried out on Tuesday morning, around 9.30am counsel said.
Full formal inquiry
Counsel said it remains his client's case that the court should open a full formal inquiry into the legality of her ongoing detention.
In reply John Gallagher BL; for the State aid that the Minister was aware of Ms Kelly’s personal circumstances and was sympathetic.
The Minister had also directed that the analysis of Ms Kelly’s most recent test sample be expedited.
It was not expected to have a result until 5pm today, counsel added.
Counsel said that while Ms Kelly has sought an inquiry, it could very well be the case that she could be released before any legal hearing into the legality of her detention is determined.
Test results
Mr Justice O’Moore, who noted that the State accepts that Ms Kelly has been subject to a form of detention, said while he was not prepared to order an inquiry at this point in time in light of recent developments.
However, depending on the outcome of Ms Kelly’s test results we would revisit the matter at 2.30pm today Tuesday.
Previously the court heard that Ms Kelly is fully vaccinated with the AstraZeneca vaccine and had received two negative Covid-19 tests before her departure for Ireland.
She had also tested negative for Covid-19 when she underwent a further PCR test here on April 4th, her second day in quarantine.
Ms Kelly would have been legally permitted to exit quarantine on Monday, April 12th, had she received a negative PCR test that day but claims was not tested that day in line with the state’s obligations under the relevant legislation
It was claimed that Ms Kelly had been informed she would not receive a PCR test until Tuesday April 13th and would only be permitted exit the hotel the following day, April 14th.
Health Act
This alleged failure to provide with the test on the tenth day, was one of the primary grounds of her challenge against her detention, the court heard.
A second ground was that the failure by the authorities to take into account her past negative tests and that she had been vaccinated for covid19, was disproportionate.
Ms Kelly had submitted three requests for review of her mandatory quarantine under the Health Act, but those had been denied, the court also heard.
As part of her action, it is also alleged that relevant provisions of the Health (Amendment) Act are repugnant to the Constitution on grounds including claims they fail to respect her rights to liberty, respect for family life and dignity.
The matter will return before the court later this afternoon.
