A High Court judge has urged the HSE to reconsider its refusal to fund a specially designed home care package to provide future care for a woman in a vegetative state for more than ten years.
The woman, aged in her forties, is a ward of court and her family, as the committee representing her interests, want her to remain in her home under a care regime designed by her GP and a consultant.
That involves two care assistants being present at all times (involving four care assistants working two 12-hour shifts) and the parents, under GP guidance, assuming nursing duties such as administering medication.
The HSE argued is clinically inappropriate and too expensive and wants her moved to a community nursing unit (CNU).
The case raises what Mr Justice Denis McDonald described as “very important” issues concerning whether the court can make orders compelling a State entity to allocate a specific amount of limited public resources to a ward of court.
In a judgment on Friday, the judge said he will only decide those legal issues if the sides cannot reach a resolution after considering his views on the evidence set out in the judgment.
He adjourned the case to next term to allow for that.
In his judgment, he said it would be “a great pity” if the HSE did not further consider the home care funding option proposed by the family.
That would involve the HSE not appointing and paying its own team of nurses and carers but rather giving the woman, through the family committee, the funds to employ carers.
If the HSE did so, and if the family made certain adjustments to their proposals, he believed the home care costs could be less than the estimated annual €315,000 costs of maintaining the woman in the CNU.
He appreciated the HSE had said it does not provide funding to private individuals to employ carers and the family’s proposal meant the HSE would be bringing in staff paid at a lesser rate with lesser conditions than people doing comparable work.
He also appreciated it had concerns about governance and control. His view was that the circumstances of this case are “unique”, the woman’s life expectancy is likely to be short, and the HSE should reconsider.
The dispute over future care arose because a €2.5 million settlement obtained by the woman in 2013 ran out last September and she has exceeded the life expectancy on which it was based.
The settlement was against the HSE without admission of liability and arose from a claim of delay and negligence in diagnosis of a brain tumour.
The settlement funded her home care since 2015 at costs ranging from €420,000 to more than €500,000 annually.
Her family had said those costs could be reduced if the HSE gave them funding to employ carers directly themselves.
Before 2015, the woman was in a hospital intensive care unit, a private hospital room, a six bed hospital ward and also in the CNU where the HSE want her to be returned.
Her family had taken her out of the CNU due to their dissatisfaction with the level of care there.
A specially adapted home unit was obtained for her where she is subject to a care regime, designed by her GP and consultants, which the judge described as “exemplary”.
Until the settlement ran out, the home care was funded from the wards of office and the HSE is now funding it pending the judge’s decision on future care.
Earlier in his judgment, the judge said the HSE evidence was the level of homecare requested for the woman was on a scale the HSE’s Home Support Service was never designed to meet.
The HSE evidence was it would cost more than €2 million a year to address the needs of 321 people on the waiting list for services in the ward’s home region, he noted.
A decision by a court in an individual case could “potentially seriously” skew the fair allocation of available resources in a manner which would undermine and destabilise the equitable provision of health services in accordance with the needs of the community.
On the other hand, as the recent Supreme Court decision on the Angela Kerins case showed, there are "rare circumstances" where the courts may have to intervene and make declarations as to legal rights even in areas the courts ordinarily regard as being outside their province.
It would be “premature and undesirable” to try and resolve the legal issues now because he wanted the sides to first consider his views on the evidence, he said.