ILRM 
 
[1976-7] I.L.R.M. 229
In the Matter of Maud McInerney, a Ward of Court
1975 No. 133
Court: High Court
Judge(s): (Finlay P )
Date: 23 June 1975
 
Court: Supreme Court
Judge(s): (Henchy , Griffin and Kenny JJ )
Date: 20 December 1976
 
Health Service—County home—Institution similar thereto—Voluntary patient—Chargeability of services involved—Whether inmates receiving more than shelter and maintenance—Mental Treatment Act 1945 (No. 19) , s. 158 —Health Act 1947 (No. 28) , s. 2 —Health Act 1953 (No. 26) , ss. 6, 54 —Health Act 1970 (No. 1) , ss. 3, 51 
 
Facts
 
S. 54 of the Health Act 1953 defines ‘institutional assistance’ as ‘shelter and maintenance in a county home or similar institution’ . S. 51 of the Health Act 1970 defines ‘in-patient services’ as ‘institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability ….’ In 1956, by ministerial direction, the former Crooksling Sanatorium became a home for the nursing care of senile patients from Grangegorman Mental Hospital who could not be discharged because they had no relatives. In pursuance of this arrangement, the ward in the instant case was transferred to Crooksling, where she was certified by the medical officer to require ‘continual accommodation and nursing care in a geriatric institution’ . The appellants (the Eastern Health Board) claimed that it had been wrongly decided in the High Court that the ward was receiving in-patient services in Crooksling.
 
Held by the Supreme Court (Henchy J, Griffin and Kenny JJ concurring) in dismissing the appeal:
 
The ward receives nursing care requisite for a patient of her age and state of health, and this goes beyond the range of mere shelter and maintenance, and amounts to the provision of in-patient services.

No cases referred to in judgment

 
Representation
 
Henry Barron SC and Thomas McCann for the appellants
 
Donal Barrington SC and P. Kevins for the ward

FINLAY P  
 
delivered his judgment on 23 June 1975 saying: This issue arises from the following facts.
 
Maud McInerney was taken into the wardship of the court on 8 December 1952 and in the month of January 1953 she was transferred to St. Brendan’s Hospital. From that hospital on 29 July 1958 she was transferred to St. Brigid’s Home and she has been in that institution ever since and remains there at present.
 
St. Brigid’s Home had formerly been a sanatorium known as the Crooksling 

Sanatorium, but ceased to be used as such in or about the year 1956 and was brought under the control of the Dublin Board of Assistance in that year. The background to that transfer was indicated in a letter admitted in evidence before me written by the secretary of the Department of Health to the secretary of the Dublin Board of Assistance and dated 24 December 1956. Mention is made in that letter of the serious overcrowding in Grangegorman Mental Hospital as St. Brendan’s Hospital was then called and the fact that that overcrowding would be relieved if a number of elderly persons who merely require simple nursing care but who cannot be discharged because they have no relatives, were transferred to another institution. Subsequently in the month of July 1958 the Minister for Health made an order pursuant to the provisions of s. 158 of the Mental Treatment Act 1954 approving of the hospital situated at Crooksling in County Dublin, formerly used as a sanatorium, as an institution for the reception of persons as temporary patients and the reception of persons as voluntary patients.
 
The transfer of the ward in this case to St. Brigid’s Home was made pursuant to an order transferring her as a voluntary patient from St. Brendan’s to St. Brigid’s.
 
In the month of July 1959 almost exactly a year later St. Brigid’s ceased to be an approved hospital under s. 158 of the Mental Treatment Act 1945 and since that time no persons have been transferred or received there as temporary patients or voluntary patients under the Mental Treatment Act 1945 .
 
The present staffing and accommodation characteristics of St. Brigid’s were proved before me as follows. There is attached to it one medical superintendent who is not resident nor whole-time but who attends on a part-time basis. The nursing staff consists of a matron, 4 ward sisters and 30 nurses together with 19 ward maids. The total number of beds is 207. The ratio of beds to nursing staff in both St. Brendan’s Hospital and in general surgical or medical hospitals was proved before me and would indicate that the ratio existing in St. Brigid’s Home shows a significantly though not dramatically lower number of nurses or persons with nursing qualifications to the number of patients. The ward is at present 82 years of age and evidence on affidavit before me would indicate that she is not at present receiving any psychiatric treatment and that she has only received medical treatment from the medical superintendent at very widely spaced intervals of time and for what might be described as minor physical complaints not by any means unexpected at her age. Neither she nor indeed any of the other patients at present resident in St. Brigid’s Home is bedridden.
 
Ever since the year 1958 payments have been made to the appropriate authority on behalf of the ward on the basis that what she was receiving was institutional assistance. Upon the passing however of the Health Act 1970 the question obviously arose as to whether what was being provided for the ward was in fact, institutional assistance and whether she was chargeable for it and 

this matter thus came before me as an issue.
 
On these facts the following statutory provisions are relevant. By virtue of s. 2 of the Health Act 1947 the expression ‘institution’ was defined as a hospital, sanatorium, maternity home, convalescent home, preventorium, laboratory, clinic, health centre, first aid station, dispensary or any similar institution and the expression ‘institutional services’ was provided to include maintenance in an institution, diagnosis, advice and treatment at an institution, appliances and medicines and other preparations and the use of special apparatus at an institution. This definition was extended by s. 6 of the Health Act 1953 which provided that the definition of ‘institution’ contained in s. 2(1) of the 1947 Act was to be amended by the insertion of county home, home for persons suffering from physical or mental disability, before maternity home in the definition. In s. 54 of the Health Act 1953 institutional assistance was defined as meaning shelter and maintenance in a county home or similar institution. Subsection (5) of that section provided an offence for persons maintained in a county home or similar institution who behaved in a disorderly manner and sub-section (7) provided that when a person in a county home or similar institution does work on behalf of the authority he should be deemed in relation to the doing of the work for the purposes of the Workmen’s Compensation Acts 1934 to 1953 to be a workman in the employment of the authority. The combined effects of s. 6 and s. 54 of the Health Act 1953 operating on the provisions of s. 2 of the Health Act 1947 would appear to have created a situation in which a person could have been in receipt of institutional services consisting of maintenance in an institution as defined and extended consisting of a county home or could be in receipt of institutional assistance, meaning shelter and maintenance, in a county home. The apparent inconsistency or clash of these provisions may not have had much practical effect by reason of the liability then arising of persons receiving either institutional services or institutional assistance to contribute towards the cost of the same.
 
By virtue of s. 3 of the First Schedule to the Health Act 1970 , Part II of the Health Act 1953 was repealed and Part II of that Act included s. 6 which had extended the meaning of institution for the purposes of the 1947 Act. S. 51 of the Health Act 1970 defined ‘inpatient services’ as meaning institutional services provided for persons while maintained in a hospital, convalesent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto. The Health Acts 1947 to 1966, which include the Health Act 1953 and the Health Act 1970 , are to be construed together as one Act.
 
Having regard to the provisions of the Health Acts 1953 and 1970 with regard to eligibility for free services and chargeability or contributions towards the provisions of services the position clearly is that if the maintenance of the ward in St. Brigid’s Home is to be considered as being institutional assistance afforded 

pursuant to the provisions of s. 54 of the Health Act 1953 then she is chargeable therefor and the amounts being claimed by the health authority on the present motion before me are properly calculated. If, on the other other hand, what the ward is receiving in St. Brigid’s Home must be construed as inpatient services within the meaning of s. 51 of the Health Act 1970 then she is entitled to receive them free and cannot be charged for them at all.
 
It seems to me that the construction of both these sections and of any other relevant sections in the Health Acts must, for the purpose of determining this issue, be approached in two different ways. Firstly it is necessary to try and consider the definition of the institution provided for in the various sections and to look at that definition in the light of the facts as I have found them in relation to St. Brigid’s Home. Secondly it is necessary to look at what is being provided for the ward and to look at the assistance or services as the case may be, as defined in the sections.
 
It seems clear that s. 51 of the 1970 Act introduces into this code a new concept namely ‘inpatient services’ . These apparently constitute a sub-category, having regard to the terms of the section, of institutional services. Having regard, however, to the fact that the section speaks of institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto, the sub-category is almost by the section independently defined. The general meaning of institutional services which, having regard to the repeal of s. 6 of the 1953 Act now become once again the definition contained in s. 2 of the 1947 Act becomes of little relevance except for the purpose, possibly, of construing later sections.
 
Turning first to the type of institution mentioned in s. 54 of the Health Act 1953 I find that it is a county home or similar institution. Although the word county home is well known to lawyers and laymen alike and though the buildings and institution formerly known as county homes were easily recognisable it is not unfortunately the subject of any statutory definition and the origin of the word though historically interesting is of little assistance in the task of construing what an institution similar to a county home might be. There is of course, no question in this case of the health board contending that St. Brigid’s Home is a county home and they seek to bring what is being provided for the ward within the terms of s. 54 upon the basis that St. Brigid’s Home is an institution similar to a county home.
 
Counsel in this case made most diligent research as to the origin of the word or title county home and it would appear that during the period prior to 1922 the revolutionary Dail which came into existence as a result of the 1918 elections encouraged various County Councils through their elected members to set up schemes alternative to the then existing poor law schemes and in most of the 26 counties county schemes were thus set up which were strictly speaking, not 

authorised by any existing statutory power. On the coming into existence of the Irish Free State this situation was regularised by the Local Government Temporary Provisions Act 1923 . In the schedule to that Act there are contained the various county schemes which have been brought into existence and the great majority though not all of them, provided for a county home. Those which did not provide for a county home by name provided for an institution such as the Donegal scheme known as the central home which was in many charactertistics similar if not almost identical to a county home. These schemes varied in detail with regard to what the purpose of a county home was and the persons who were eligible for admission to it but not in any great fundamental principle. A typical example of the provision for a county home is to be found in the Waterford county scheme which provided inter alia that a county home be established at Dungarvan for the accommodation of (a) chronic cases, (b) aged and infirmed, (c) unmarried mothers, (d) expectant unmarried mothers, (e) children who cannot be boarded out, (f) healthy harmless idiots and (g) healthy epileptics. Consideration of these categories of persons admissible to a county home allowing for the somewhat harsher social concepts of the time indicate a mixture of persons who might require nursing or medical attention and persons who might require shelter and maintenance only. Broadly speaking however, the schemes to which I refer have one consistent principle and that is that persons formerly occupying the work-houses who are described as able-bodied inmates should not be transferred to the county home. To this extent it can, I suppose, be said that the county home as originally provided for in these schemes and as ratified by the 1923 Act probably involves some aspect of nursing or medical care even if only on a supervisory basis. Such element of medical or nursing care however, would not appear to have been necessary for all the persons admitted to county homes. To take again as an example the Waterford scheme to which I have referred, it would seem clear that no real nursing in the sense of medical nursing would be necessary for an unmarried mother as distinct from an expectant unmarried mother or for a child who could not be boarded out. Furthermore the provisions of subss. 5 & 7 of s. 54 of the 1953 Act would appear wholly inappropriate to St. Brigid’s Home. Having regard to these considerations I take the view that whilst certain aspects of the institution now known as St. Brigid’s Home could be said to be similar to what was formerly known as a county home, that it does not fully or conveniently fit in to the definition of an institution similar to a county home.
 
Turning on the other hand to s. 51 of the Health Act 1970 it seems on the evidence before me that St. Brigid’s Home much more nearly coincides with the description of a home for persons suffering from physical or mental disability. There was no suggsetion on the evidence before me that any person would ordinarily be admitted to St. Brigid’s Home merely because or solely because she was a person who had not got a roof over her head. It was suggested 

on behalf of the health authority that I should not consider age and the problems of independence which go with ordinary age as distinct from some physical or mental abnormality as being a physical disability.
 
I find this argument difficult to accept and I am satisfied that in any case, and there would appear to be such cases, where an elderly woman is admitted to St. Brigid’s Home because by reason of her age she is unable to look after herself and by reason of her family situation there is no one else in a position to look after her, she must be considered as a person suffering from a physical disability. On the test therefore, of the institution itself I find St. Brigid’s Home more nearly to coincide with the provisions of s. 51 of the Health Act 1970 than with the provisions of s. 54 of the Health Act 1953 .
 
Turning to the services or matters to be provided and being provided for the ward in St. Brigid’s Home, the position of course is that if she is to be brought within s. 54 of the 1953 Act then I must be satisfied that what she is getting is shelter and maintenance and nothing more. I construe the words ‘shelter and maintenance’ as meaning firstly a roof over the head of a person which is to me the meaning of shelter and maintenance, it seems to me, food and possibly clothing as well. I must construe shelter and maintenance as not involving any ingredient of medical care or nursing.
 
In this context it seems to me that I cannot ignore the fact that the person with whom I am concerned in this case is a ward of court and is a person who by the court has been found to be of unsound mind that is to say, to be suffering from a mental disability which prevents her from being capable of managing her own affairs. Whilst it is established in the evidence before me that the ward is not at present receiving any psychiatric treatment from which I infer that psychiatric treatment is not at present of any benefit to her, no suggestion has been made that she is a person who could be discharged from the wardship of the court. She is provided for in a home which has a staff of roughly one nurse to each seven residents apart from the appropriate domestic staff and certain supervisory nursing staff and a medical superintendent. All this leads me to the conclusion that what is being provided for the Ward in St. Brigid’s Home goes beyond the rather narrow and bald conception of shelter and maintenance only and that she is receiving a form of medical care which, though not as intensive as might be appropriate to a hospital or even to a psychiatric wing of a hospital, is none the less beyond the conception of mere shelter and maintenance which apears to me to be contained in s. 53 of the 1953 Act. In regard therefore to the question as to what is being provided for the resident as distinct from the question of the nature of the institution I find s. 51 of the Health Act 1970 more appropriate to the position of the ward than s. 54 of the Health Act 1953 .
 
I therefore conclude that the ward is not a person who is chargeable in St. Brigid’s Home and that therefore this motion must be refused.

SUPREME COURT
 
HENCHY J (Griffin and Henchy JJ concurring) delivered his judgment on 20 December 1976 saying: The appellants contend that it was wrongly decided in the High Court that what the ward is receiving in St. Brigid’s Home is ‘in-patient services’ under s. 51 of the Health Act 1970 and not ‘institutional assistance’ under s. 54 of the Health Act 1953 . For my part I am persuaded by the reasoning in the judgment of Finlay P that his conclusion to that effect is correct. I would merely advert to the following matters as supporting that conclusion.
 
The annual report from the Department of Health for 1956-7 stated that the former Crooksling Sanatorium (now St. Brigid’s Home) was to be used in future to accommodate ‘senile patients from Grangegorman Mental Hospital who require simple nursing care only’ .
 
Following on that decision, a letter was written on behalf of the Minister for Health on 24 December 1956 asking that a transfer to what is now St. Brigid’s Home be arranged of patients in Grangegorman Mental Hospital (now St. Brendan’s Hospital) of ‘elderly persons who merely require simple nursing care but who cannot be discharged because they have no relatives’ .
 
It was as part of that arrangement that the ward in this case was transferred from St. Brendan’s Hospital to St. Brigid’s Home in July 1958. The medical officer of St. Brigid’s Home has certified that since then: 
 
She has been maintained as a long-term geriatric patient who, owing to her condition, and social problems at home, requires continual accommodation and nursing care in a geriatric institution.

That certificate epitomises the nature of the care she has been receiving in St. Brigid’s Home. On the face of it, it falls under the definition of ‘in-patient services’ to be found in s. 51 of the Health Act 1970 , ie ‘institutional service provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto’ . The services provided for the ward are institutional in character, and St. Brigid’s Home qualifies as the type of institution specified in the section.
 
In contrast, s. 54 of the Health Act 1953 refers to ‘institutional assistance’ and defines it as ‘shelter and maintenance in a county home or similar institution’ . A reading of the whole of that section shows that it is aimed at duly eligible, healthy persons, who are not patients, and who are provided with no more than shelter and maintenance.
 
The ward in this case gets more than shelter and maintenance. She gets the nursing care requisite for a patient of her age and state of health in a geriatric institution. The evidence does not go in detail into the regimen of treatment 

provided for her, but it is clear that it involves nursing (the nurse/patient ratio in St. Brigid’s Home is one to seven), supervision, activation, and other para-medical services, which are given in an institutional setting and which are above and beyond the range of mere ‘shelter and maintenance’ .
 
In other words, what she is getting is ‘in-patient services’ , which she requires because she is a geriatric patient.
 
I would dismiss this appeal.
 
Representation
 
Solicitors for the appellants: Roger Greene & Sons 
 
Solicitors for the ward: Fred Sutton & Co.