C.M. v Residential Institutions Redress Review Committee
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 19 May 2015 |
| Neutral Citation | [2015] IEHC 335 |
| Court | High Court |
| Date | 19 May 2015 |
[2015] IEHC 335
THE HIGH COURT
AND
Damages & Restitution – The Residential Institutions Redress Act, 2002 – Regulation 6(1) of the Mental Treatment Regulations, 1961 – Child abuse – Test of reasonableness
Facts: Following the refusal of an award for damages by the respondent, the applicant now had applied for an order quashing the decision of the respondent. The applicant contended that she was being abused while being resident in an institution during her childhood given restraints for use of telephone, bed timings, strip search among other things and that would constitute an injury within ambit of the Residential Institutions Redress Act, 2002.
Ms. Justice Iseult O'Malley refused to grant an order for quashing the decision of the respondent. The Court held that applicant failed to establish that the treatment meted out to her was unreasonable. The Court found that the restraints of the applicant were incidental to the regulations observed by the institution and did not come within the definition of child abuse under Residential Institutions Redress Act, 2002. The Court observed that strip searches that applicant had gone were due to her tendency of self harm and thus required constant vigil and searches upon her person. The Court held that the right of privacy is not absolute.
Under the provisions of the Residential Institutions Redress Act, 2002 ("the Act"), the Residential Institutions Redress Board ("the Board") has the function of making awards to persons who were resident in a relevant institution during their childhood and who prove to the satisfaction of the Board that they were injured while so resident, and that the injury is consistent with any abuse alleged to have occurred while they were so resident. Where the Board decides that any matter specified by the Act has not been established to its satisfaction, and therefore declines to make an award, the applicant for redress may submit that decision to the respondent Committee for review.
In this case the Board decided that the applicant had not been subjected to abuse within the meaning of the Act. The respondent upheld that view, and the applicant now seeks judicial review reliefs quashing that decision and remitting the matter for rehearing or, in the alternative, an order directing the respondent to pay to the applicant damages in lieu of the statutory remedy.
The applicant was bora in 1982. It appears that, when she was fifteen, she was for some months in a residential treatment centre which was run by the local health board. She was admitted voluntarily, following a case conference held in June, 1997. It appears that at the time she suffered from depression; an eating disorder/weight loss; episodes of self harm (by eating plastic); and aggressive behaviour. She had attempted suicide by overdose on two occasions and had made reports, considered very credible, of suffering child sexual abuse. The purpose of her admission, as presented to her, was the investigation of possible depression and help with anger and behaviours.
The treatment centre, or unit, was a psychiatric service for children aged under sixteen years. It is a scheduled institution for the purposes of the Act.
When the applicant entered the unit her father signed an "Admission Consent Form". It is relevant to note the following matters referred to in the form.
"While we have a tolerance for children's problems, we consider some behaviours unacceptable. We work on a system of rewards and penalties with each child to encourage more acceptable behaviour. Physical restraint and time out (sometimes in a time out room) may be used by Staff in some circumstances…"
…Physical Examination is part of the Admission routine and may be repeated, as necessary, during the Admission. Clinical investigations/tests may also be done…"
The applicant's parents also consented to her being permitted to smoke, in the limited and supervised manner allowed in the unit.
On the 14 th December, 2005, the applicant submitted an application form to the Board. In a statement submitted with the application, she said that as a result of certain personal difficulties in her life she was referred to the Child and Adolescent Service of her local health board in 1996. At a certain stage it was recommended that she be admitted to the unit in question. She agreed to this, as she understood that she would receive intensive help, support and counselling there. However, she found the regime to be very strict and felt that some members of staff imposed arbitrary and nonsensical rules.
The applicant said that on one occasion she was assaulted by a member of staff. This occurred when she was on the phone to her father. There were strict time limits on phone calls and, although she was very upset at the time, she was told that her time was up and to hang up. The staff member grabbed the phone from her and hung it up. According to the statement:
"An argument developed between myself and this member of staff during which I was physically restrained and then locked in the dining room for over an hour."
Complaint was made of restricted times for smoking, which the applicant said caused tensions and rows.
The applicant recalled an occasion on which a girl in her room attempted suicide by tying a shoelace around her neck. The applicant managed to stop her and called for help. Subsequently nobody told her how the girl was, which she saw as a reflection of the uncaring attitude of staff.
The practice of "bed limits" was described as follows:
"The staff would impose what they termed 'bed limits' for the most minor breaches of regulations. This involved being confined to a bedroom for a set period of time up to 7 hours during which time I was not allowed sleep. If you went to sleep during this time then the 'bed limit' had to start again. The only activity you were allowed during this 'bed limit' was to read. These kind of incidents only added to my depression and certainly could not have been seen as a positive treatment."
The applicant recalled an occasion when she returned to the unit from a weekend at home. She said that she was subjected to a "strip search" by a female staff member, for which she had to remove all of her clothing. She found this degrading.
After Christmas 1997 the applicant chose not return to the unit and she was formally discharged the following February. She left home shortly after this, moving into supportive lodgings. She became involved in an abusive relationship with an older man and became pregnant by him. Her relationship with her parents deteriorated during this period.
The applicant said that she had suffered greatly because of what she saw as a betrayal of her by the staff of the unit. She continued to suffer from an eating disorder and developed a drink problem. In concluding her statement she said:
"There are some things which happened at [the unit] which I cannot at this time recall in detail and I have tried to block some things out of my mind. I feel however that upon receipt of further documentation pursuant to a Freedom of information Request which I have made that I may recall other incidents. In summary however I feel that my time [there], rather than assisting with my treatment, had exactly the reverse effect and after my time there my problems were multiplied and I felt unable to trust the counselling and other services who should have been there for me."
The applicant's case was not finally ready for hearing until 2011. Settlement negotiations later that year were unsuccessful and the hearing took place before the Redress board on the 15 th July, 2013.
At the hearing the applicant said that she had gone into the unit for therapeutic help but that was not what she got.
She said that she was allowed home at weekends because she was well behaved, but that after the first two or three weekends she was "strip searched" every weekend. She described this as being required to go into the bathroom, strip off completely and hand her towel to the female staff member outside. That person would then come in, walk around her a couple of times and then give the towel back.
The applicant said that "bed limits" meant sitting on a bed for seven hours with her hands by her sides, staring at a door. If she fell asleep they would wake her up and the seven hours would start over again the next day.
Two incidents were described by the applicant as having a major effect on her. The first was when a young boy tried to hang himself with his belt in the bathroom. She said that she was trying to get into the bathroom but he had wedged a bed against the door.
The second incident was when the girl in her room tied a shoelace around her neck, as described in her application statement.
The incident in relation to the row about the telephone call was said to have arisen in circumstances where the applicant was pleading with her father to take her home. The applicant said:
"And she whipped the phone from me and shouted that I had hit her with the phone. And at that she grabbed my arms behind my back, pinned me to the floor, put her knee against my back and there was two or three other staff members around me at that stage."
The applicant said that her life subsequently went off the rails.
In cross-examination it was put to the applicant that, according to the records, she had received
"Milieu therapy, individual psychotherapy, family therapy meetings and attendance at Unit's special school".
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