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InvestigatesNursing HomesSOME OLDER PEOPLE are being discharged into nursing homes from hospitals against their wishes, with the taxpayer footing the legal bill, The Journal Investigates can reveal.
New figures show that last month there were almost 60 such cases where someone had been clinically discharged, but whose actual discharge had been delayed due to unresolved issues relating to consent, capacity, wardship, decision-support arrangements or deprivation of liberty.
The HSE has confirmed that it paid out almost €1 million in legal fees last year on similar cases – which could be avoided if long-awaited legislation were enacted.
The Department of Health has consistently promised to deliver legislation that would provide a legal framework for Protection of Liberty Safeguards for people who are or could be deprived of their liberty in care settings – such as hospitals, but also nursing homes and residential disability facilities.
This is in circumstances where they are potentially being put in a place of care which they are not consenting to, or where they lack capacity.
But despite the promise of the Heads of a Bill over the past 18 months, the long mooted legislation has still not been finalised – and at the same time, dozens of cases that could be dealt with by new laws are going through the High Court.
The legal wrangling has also contributed to some cases involving older people going to both the High Court and the Circuit Court, for different legal elements but relating to the same person.
The Chair of Safeguarding Ireland, Patricia Rickard-Clarke, told The Journal Investigates that in just one two-week period recently, 73 such cases were listed in the High Court.
It’s a legal tangle which the HSE has admitted is costing significant sums of money, even though legislation which could resolve the issue has been in the making for a decade.
It is creating longer waiting lists for acute beds in hospitals, which the HSE wants to free up.
While this issue relates to people being potentially placed into nursing homes, The Journal Investigates recently highlighted the issue of residents being discharged from those facilities – often against their will.
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Rickard-Clarke told our team that there is a growing list of cases of older people who entered acute hospitals and have been there for some time and whom the HSE is seeking to have discharged.
But the issue is, to where? Often this is to a nursing home, even though it’s against the wishes of the older person and sometimes their family.
“The HSE are in a bind,” Rickard Clarke said. “If they are trying to discharge a person from hospital and there is nowhere to go and no funding for home care, this highlights the gap in legislation which has been ongoing for the last 10 years. We still haven’t got the proper legislation in place to deal with these constitutional rights.”
There are complex legal reasons for these cases ending up in the High Court, but ultimately it could be resolved if long-standing Protection of Liberty safeguards were made into law.
In a response to a parliamentary question lodged by Social Democrat TD Liam Quaide, the HSE said that as of the middle of May this year, there were 60 cases involving people currently in acute hospitals who are clinically discharged, but whose discharge is delayed due to unresolved issues relating to consent, capacity, wardship, decision-support arrangements or deprivation of liberty.
Just one of those cases involved a child.
These delayed transfers of care (DTOC) also mean some hospital beds could be freed up in hospitals but remain occupied.
According to the HSE: “In 2025, 257 patients were recorded as DTOC due to legal complexity and or Assisted Decision Making Act reasons. This figure includes patients across all age ranges and is not specific to older persons.”
The HSE assessed its own legal costs in these cases last year to be in the region of €940,750, described as “the cumulative spend for 106 separate legal matters.”
The total spend on legal services by the HSE in 2025 was €23.6m.
According to an HSE spokesperson: “The figures provided in relation to legal spend refer to applications made by the HSE to the High Court seeking orders under its inherent jurisdiction. The orders apply to relevant persons who lack capacity of which some are older persons, and some are service users with disabilities.”
The HSE said those legal costs could also cover some of the cases before the circuit court, as they refer to the same person who might be before the High Court.
Separately, the negotiation and payment of legal costs awarded to Guardians ad Litem and independent solicitors appointed for the relevant person by the High Court, and any other orders for third-party costs that the Court may grant against the HSE, are managed by the Legal Costs Unit of the National Treasury Management Agency.
The Department has described the situation as “a complex area of law” which has to comply with national and international legal obligations and case law.
Rickard-Clarke said the Department became aware of the gap in the current law and that it took steps to find a solution – but it still hasn’t been delivered.
The situation is influenced by a number of existing legal instruments.
The Assisted Decision-Making (Capacity) Act was signed into law in December 2015 but only fully commenced in April 2023. By then Ireland had already signed the UN Convention on the Rights of Persons with Disabilities, which was ratified in 2018. Other factors in this are the Irish Constitutional right to liberty, and Article 5 of the European Convention on Human Rights.
Rickard-Clarke said: “We had no law to provide for the procedure when a person was being put in a place of care where they were not consenting to it, or where they lacked capacity.
“So the Department [of Health] saw this gap in the legislation. It was planned that Part 13 of the Assisted Decision-Making (Capacity) Act would deal with this issue, that it would have a section dealing with the procedures that would be required, the steps that should be taken to protect the person’s rights and make a decision to authorise the deprivation [of liberty] if it was necessary. And as we all know, in some cases, that is necessary anyway.
“It was realised that this issue of the deprivation of a person’s liberty had to be addressed in the Assisted Decision-Making (Capacity) Act, and the Department of Health set up an advisory group back in 2016 to look at this issue, which they did.”
That advisory subsequently produced a consultation paper and a report.
However, a case that ultimately made its way through the High Court, Court of Appeal and the Supreme Court also impacted this process.
AC vs the HSE and Cork University Hospital involved an older person who was readmitted to CUH having broken her second hip. She was made a ward of court, with CUH wanting to discharge her on medical grounds but with uncertainty over whether she should go home.
That was appealed by the woman’s family on the grounds that she was being detained and deprived of her liberty. It was ruled that the hospital did not have the jurisdiction to effectively deprive someone of their liberty and that this was a matter for the court.
The advisory committee set up by the Department of Health reconvened in 2023 to look at what these procedures might look like, such as ensuring that a court procedure was a last resort rather than a first port of call, with a possible authorisation process in place to try and resolve such issues as they arise.
Heads of Bill on Protection of Liberty safeguards were promised throughout last year but according to Rickard-Clarke, it is not being prioritised in Leinster House.
Deputy Quaide said: “The state has known for years that it needs a proper Protection of Liberty Safeguards framework, but successive governments have still not enacted one. That leaves hospitals, families, nursing homes and the courts dealing with extremely serious decisions about a person’s liberty, capacity and residency without the clear statutory route that should exist.
It is not a sustainable or humane way to run a health and social care system when many cases are now ending up in the High Court because the legal framework is missing.”
This is also taking place against the backdrop of an increased number of hospitalisations from nursing homes.
The most recent figures show that while just over 17,000 people were hospitalised from nursing homes in 2024, last year this increased to 17,804, with increases in both elective and – in particular – emergency admissions.
The HSE pointed out that Hospital In-Patient Enquiry [HIPE] data is based on hospitalisations, which may include multiple admissions for the same patient.
On addressing the legal gap, the Department of Health said: “Final policy proposals are now being developed to frame the drafting of a General Scheme of the Bill this year. The health and social care settings that will be included in the legislation and the role of independent advocacy are being considered as part of this work.
“A Regulatory Impact Assessment will be undertaken to accompany the General Scheme and this will consider estimates of the number of people in relevant health and social care settings that may be deprived of their liberty and estimate costs of the proposed framework.”
The HSE said: “The right to liberty is a fundamental right for people, and any legislation must clarify how this will be managed in health and social care services. The HSE will continue to work with the Department of Health on this critical human rights-affirming legislation.”
Reporter: Noel Baker • Editor: Christine Bohan • Social Media: Cliodhna Travers • Main Image Design: Lorcan O’Reilly
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