DH (A Minor) v Ireland and Others

• Jurisdiction: Ireland
• Judge: JUSTICE KELLY
• Judgment Date: 23 May 2000
• Neutral Citation: 2000 WJSC-HC 3812
• Court: High Court
• Date: 23 May 2000

2000 WJSC-HC 3812

THE HIGH COURT

No. 5342p/2000

H (D) v. IRELAND & AG & NORTH EASTERN HEALTH BOARD

BETWEEN

D.H.(a Minor)

APPLICANT

AND

IRELAND, THE ATTORNEY GENERAL AND THE NORTH EASTERNHEALTH BOARD

RESPONDENTS

Citations:

CHILD CARE ACT 1991 S3

CHILD CARE ACT 1991 S3(3)

CHILD CARE ACT 1991 S3(2)

CHILD CARE ACT 1991 S69

CONSTITUTION ART 40.3.1

G V BORD UCHTALA 1980 IR 32

N (F) V MIN FOR EDUCATION 1995 1 IR 409, 1995 2 ILRM 297

A & B V EASTERN HEALTH BOARD 1998 1 IR 464, 1998 1 ILRM 460

T (D) V EASTERN HEALTH BOARD UNREP GEOGHEGAN 24.3.1995 1995/5/1661

G (D) V EASTERN HEALTH BOARD 1997 3 IR 511, 1998 1 ILRM 241

QUINN, STATE V RYAN 1965 IR 106

J (A MINOR) (MEDICAL TREATMENT), IN RE 1992 2 FLR 165

Synopsis

Children

Children; child care; duties of health board; detention; child receiving inadequate care and protection; applicant 16 years old; plaintiff a profoundly disturbed person, suffering from borderline personality disorder and conduct disorder together with dysthymia; plaintiff not suffering from mental illness as such; plaintiff in need of a high level of physical security and other supports; plaintiff being detained in St. Brigid's Hospital, Ardee; plaintiff seeking mandatory injunction compelling defendants to provide plaintiff with appropriate accommodation; whether order should be made that plaintiff be detained in Central Mental Hospital; whether Court should assume responsibility for a clinical decision concerning the admission, discharge or deferral of sick people; whether doctor may be required by the Court to adopt a particular course of treatment in relation to a child where the treatment is contrary to the doctor's clinical judgment; whether order should be made that plaintiff be detained in St. Brigid's Hospital; whether no order should be made; whether order should be made compelling Minister for Health and Children to provide appropriate facilities within 48 hours; obligation on health board under s.3, Child Care Act, 1991; Art. 40.3.1 of the Constitution.

Held: Permissive order made allowing health board to detain applicant for her own welfare at any facility that can be found, provided it meets with the approval of its consultant child psychiatrist; permissive order made allowing such medication to be administered to applicant as psychiatrists having clinical responsibility for her may deem appropriate; mandatory order made compelling health board to carry out, within three months, refurbishment to premises in St. Brigid's Hospital in order to make them suitable as a place for detention of the applicant; mandatory order made directing Minister to provide all necessary funding and supports to ensure this refurbishment is carried out.

D.H. (a minor) v. Ireland - High Court: Kelly J. - 23/05/2000

The applicant had a disturbed and unsettled childhood. The applicant was a regular drug abuser and had engaged in prostitution. Evidence was tendered that the applicant was suffering from a severe conduct disorder. The application came before the court seeking orders directing the respondents to provide proper care facilities for the applicant. Kelly J held that the applicant was suffering from a severe personality disorder. The applicant was not mentally ill and it was not appropriate that the applicant be sent to the Central Mental Hospital, as it had been contended on behalf of the State. The relevant Health Board was under a statutory duty to provide care facilities for the applicant. A permissive order would be made requiring the relevant Health Board to fulfil its statutory duty. In addition mandatory orders would be issued relating to the refurbishment of certain premises. Various ancillary orders were made in relation to costs.

TRANSCRIPT OF JUDGMENT TUESDAY 23RD MAY 2000

1 IRISH STENOGRAPHERS LIMITED Hillcrest House, Dargle Valley, Bray, Co.Wicklow.

2 Tel/Fax: 01-2862184

3 MR. JUSTICE KELLYDELIVERED JUDGMENT AS FOLLOWS ON TUESDAY, 23RD MAY, 2000AT 10.45A.M.

4 MR. JUSTICE KELLY: I give the usual direction. This is a Judgment being delivered in open Court but nothing is to be published which will identify or tend to identify the minor.

5 D.H. is 16 years old. She has had a miserable existence and a most unhappy life. It began with rejection by her natural mother who was 15 years old at the time of D's birth. This necessitated D. being placed in foster care from infancy. Such contact as she had with her mother, who now lives abroad, has been infrequent and the relationship is very poor. Her father lives in Ireland. He is in another relationship. She-has had little contact with him and dislikes him. She has half brothers and half sisters, all of whom are in care; she has no contact with them.

6 From her early years she has felt unwanted and rejected and there is indeed more than an element of truth to support that belief. At seven years of age she was apparently sexually abused by a male.

7 At eleven she states she was raped. She alleges that her foster mother was physically abusive to her. She acknowledges that from about eight years old she has had serious problem with her behaviour. As the years have gone by these problems have got worse and worse.

8 The foster care came to an end when she was about ten years of age and has been replaced by residence in a variety of residential care facilities. These have included residence in a detention centre. That came about because of breaches of the criminal law on D.'s part. Her behaviour has got worse and worse. She has abused alcohol, drinking more than a bottle of spirits a day by times. She has abused lighter fuel, using as many astwelve canisters a day. She has abused ecstasy, speed and hash, using them on a regular basis. She has engaged in prostitution. She had a miscarriage at 2 months gestation. She is 16 years old.

9 In tandem with all this she has behaved violently towards herself and others. There have been frequent episodes of self mutilation and two serious attempts at suicide by hanging. The most recent episode of a serious attempt at self harm occurred while she was in detention at Oberstown Detention Centre. There she set fire to her cell and dressing gown, having barricaded herself in. She was taken to Beaumont Hospital for treatment for physical damage which she caused herself.

10 From there she was taken to St. Brigid's Hospital in Ardee where she remains to this day. She was admitted there on 6th May. There is no doubt but that she is a profoundly disturbed person. She is a very high risk to hereself and to others. All of the parties before the Court are agreed on one thing, namely, that it would be irresponsible and wrong to release her from a secure setting. To do so would place her at high risk of losing her life or doing serious damage to herself or others. It is also agreed that it is not practicable to contemplate her return to the detention centre.

11 The case of D.H. is the most difficult of all the children's cases that it has been my responsibility to decide. It represents in a most tragic human form the results of a failure to provide adequate services to address the needs of children such as D. Having become the responsibility of the North Eastern Health Board the child has been assessed by a variety of experts over the years. I mention just a few. As far back as 1994 when she was then ten years old she was seen and assessed by Dr. Paul McQuaid, a Child Psychiatrist. He made a diagnosis of severe conduct disorder. That has remained consistent over subsequent psychiatric assessments save for one dissent which I will deal with later on in this Judgment.

12 In February 1996 D. was assessed by Dr. Sheerin, Consultant ChildPsychiatrist with the North Eastern Health Board. He found, and I quote from the report which he made at the time, he said:

" My impression is that D. has a long standing conduct disorder and clearly externalizes her problems. Her cognitive processes are in line with this diagnosis. I do not think she is depressed, although she has fleeting suicidal thoughts and therefore probably represents a chronic risk of self harm. There is not an acute risk and therefore these feelings are unlikely to change without considerable change in her circumstances and perhaps even deeper personality change"

13 He went on to recommend as follows, and I quote again:

" D. requires a high secure environment that can manage to contain her delinquent behaviour with firm rules and constraints in the external world that can then hopefully be internalized. Only when this is in place can she address some of the emotional issues without recourse to externalizing or acting out her problems or distresses. Her recent behaviours when such an environment is not in place for her only consolidate this recommendation".

14 At no stage has the necessary secure environment recommended by the doctor in 1996 been available to D. through the agency of the North Eastern Health Board.

15 I have no hesitation in accepting Dr. Sheerin's view that if the treatment he recommended over four years ago had been provided the child might have made progress and probably would not be before this Court today, but she is and I have to do my best todeal with the problem. It is a problem that ought not to be in this Court, no more than all the other children's cases. I have already pointed out in previous cases the ludicrous situation that has existed since the 1991 Child Care Act foisted a statutory duty on Health Boards, which is contained at Section 3 thereof. That Section provides:

" It shall be a function of every Health Board to promote the welfare of children in its area who are not receiving adequate care andprotection"[quoted].

16 Sub-section (3):

" A Health Board shall in addition to any other function assigned to it under this Act or any other enactment provide child care and family support services and may provide and maintain premises and make such other...