H (G) (A Minor) v Health Service Executive (HSE) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 18 July 2011
• Neutral Citation: [2011] IEHC 297
• Court: High Court
• Date: 18 July 2011

[2011] IEHC 297

THE HIGH COURT

[No. 62IA/2011]

H (G) (A Minor) v Health Service Executive (HSE) & Ors

IN THE MATTER OF GH AND IN THE MATTER OF ARTICLE 40.3 AND ARTICLE 41 AND ARTICLE 42 OF THE CONSTITUTION AND IN THE MATTER OF CHILD CARE ACT 1991

BETWEEN/

GH (A MINOR REPRESENTED BY HIS SOLICITOR AND NEXT FRIEND, ROSEMARY GANTLY)

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE, S.F. AND J.H.

DEFENDANTS

CONSTITUTION ART 41

CONSTITUTION ART 42

CHILD CARE ACT 1991 S3

CHILD CARE ACT 1991 S5

CONNORS v PEARSON 1921 2 IR 51

CONSTITUTION ART 40.3.2

KINSELLA v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 12.6.2011 2011 IEHC 235 [TRANSCRIPT UNAVAILABLE]

CONSTITUTION ART 42.5

S (S)(A MINOR) v HEALTH SERVICE EXECUTIVE 2008 1 IR 594

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

G (D) v IRELAND 2002 35 EHRR 1153

CONSTITUTION ART 40.3

CONSTITUTION ART 42.5

CONSTITUTIONAL LAW

High court

Jurisdiction - Inherent jurisdiction - Civil detention - Detention of minor - Duration of detention - Purpose of detention - Extent of jurisdiction to order civil detention - Whether High Court could order civil detention of minor - Whether detention could be ordered in best interests of minor - SS (a minor) v HSE [2007] IEHC 189, [2008] 1 I.R. 594 followed; Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, (Unrep, Hogan J, 12/6/2011) and DG v Ireland (app 39474/98) (2002) 35 EHRR 1153 considered - Constitution of Ireland, 1937, Articles 40.3 and 42.5 - Detention ordered (2001/62IA - Hogan J - 18/7/2011) [2011] IEHC 297

H(G) (a minor) v HSE

1 1. This is a sad and tragic case, the dismal and depressing nature of which cannot adequately be conveyed by a few weak words of mine. GH, the subject matter of this case, is now aged 16 and will turn 17 next November. He has been in care with the HSE since he was three years old. His parents are separated and both are chronic drug addicts. His grandparents have, however, sought to provide a home for him and did so until about two years ago when his behaviour made that an impossible task.

2 2. This young man has been diagnosed with oppositional defiance disorder and attention deficit hyper activity disorder. While it cannot be said that he is suffering from a mental illness within the meaning of the Mental Treatment Act 2001, he is nonetheless suffering from an acute behavioural disorder. This manifests itself in frequent and purely random acts of violence on his part, attacks which often contain a sexualised element directed at females. Mr. Aongus Hourican, a very experienced HSE social worker with extensive knowledge of highly troubled juveniles, described him in evidence before me as an exceptionally violent and very dangerous young man. It is scarcely surprising to record that GH has been out of the mainstream school system for many years.

3 3. This present application arose in the following way. GH was placed with a specialised team of three persons in a house, but this placement came to an end on 13 ^thJuly, 2011. GH then presented at a Garda station where he became aggressive and had to be restrained. He was subsequently brought to Tallaght Hospital where he remained overnight at the accident and emergency section under the supervision of hospital security staff. It appears that GH took an overdose of drugs that evening. Mr. Lavery, his dedicated guardian ad litem, gave evidence before me that GH has repeatedly stated that he intends to take his own life.

4 4. The responsible authority, the National Admissions and Discharge Committee, decided on 13 ^th July, 2011, identified a secure placement at a location in Scotland. However, the consent of the Central Authority under the Brussels II Regulation is required in respect of such a cross-border transfer and it is understood that this will take a further four to eight weeks.

5 5. On Friday evening 15 ^th July, 2001, following an application to this Court on behalf of GH, Birmingham J. made an order providing that he be placed at a HSE unit with a dedicated social work team. GH gave personal undertakings that he would be of good behaviour, including that he would not assault staff or behave in an abusive fashion. Birmingham J. ordered that GH produced before the Court later today (Monday, 18 ^th July, 2011) at 4pm.

6 6. By 1pm on Saturday 16 ^th July, GH's behaviour had deteriorated appreciably and the Gardai at Naas Garda Station were contacted. Sergeant Bowe gave evidence before me that the staff at the unit had been terrified and overwhelmed by his violent conduct. He confirmed that Garda records suggested that there had been over thirty incidents of violence involving this young man logged within a very short period of time. A Garda team then arrested GH and he was ultimately brought before a special sitting of this Court on Saturday night, 16 ^th July, 2011.

7 7. At that sitting, counsel for the HSE, Mr. McEnroy SC, frankly conceded that the HSE staff could no longer treat this young man given his extraordinarily violent behaviour, although they remained absolutely committed to his welfare and they fully acknowledged their statutory obligations to him virtue of the provisions of ss. 3 and 5 of the Child Care Act 1991.

8 8. Mr. McEnroy SC then outlined what he suggested were the various options open to the Court. The first option was to treat the breach of the undertakings as a contempt of court. This was not a realistic possibility in the circumstances given that the court order had not contained a penal endorsement, but more especially because the young man had no separate legal representation. The second option was to exercise the Court's inherent jurisdiction and to order the civil detention of GH in St. Patrick's Institution in order to safeguard his welfare.

9 9. Unpalatable as these options were, there was, perhaps, a third option open to me, namely, to order direct the release of GH. Leaving aside the fact that it was a wet and unseasonably cold July night, GH had no place to go to and he would have been obliged to walk the streets. All three witnesses who gave evidence before me - Mr. Hourican, Sergeant Bowe and the guardian ad litem...