Health Service Executive (HSE) v J O'B (A Person of Unsound Mind Not So Found)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 03 March 2011
• Neutral Citation: [2011] IEHC 73
• Court: High Court
• Docket Number: [2011 No. 1208P]
• Date: 03 March 2011

[2011] IEHC 73

THE HIGH COURT

[No. 1208P/2011]

Health Service Executive (HSE) v O'B (J)

IN THE MATTER OF J.O'B AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT

BETWEEN

HEALTH SERVICE EXECUTIVE

PLAINTIFF

AND

J.O'B ( A PERSON OF UNSOUND MIND NOT SO FOUND) REPRESENTED BY HIS GUARDIAN AD LITEM H.O'B

RESPONDENT

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 1983 S3 (UK)

G (D) (A MINOR) v EASTERN HEALTH BOARD & ORS 1997 3 IR 511 1998 1 ILRM 241 1998/7/1838

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

HUTCHISON REID v UNITED KINGDOM 2003 37 EHRR 9 14 BHRC 41

WINTERWERP v NETHERLANDS 1979-80 2 EHRR 387

F (ADULT: COURTS JURISDICTION), IN RE 2001 FAM 38 2000 3 WLR 1740 2000 2 FLR 512 2000 3 FCR 30

A (S) (VULNERABLE ADULT WITH CAPACITY: MARRIAGE), IN RE 2006 1 FLR 867 2007 2 FCR 563

S (ADULT PATIENT) (INHERENT JURISDICTION: FAMILY LIFE), IN RE 2003 1 FLR 292 2002 EWHC 2278 (FAM)

COURTS

High Court

Inherent jurisdiction - Vulnerable adult - Person of unsound mind not so found - Detention of adult in psychiatric institution overseas - Application for detention in Central Mental Hospital - Medical condition falling outside provision of Mental Health Act 2001 - Absence of statutory provision to make orders sought - Best interests and welfare requirements of adult - Whether High Court had inherent jurisdiction to order detention of vunerable adult in psychiatric institution - DG v Eastern Health Board [1997] 3 IR 511 applied; Re SA (Vunerable Adult with Capacity Marriage) [2006] EWHC 2942 (Fam), [2006] FLR 867 considered; In re F (Adult: Court's jurisdiction) [2000] 2 FLR 512 distinguished; Hutchinson Reid v UK (2003) 37 EHRR 9 and Winterwerp v Netherlands (1979) 2 EHRR 387 considered - Constitution of Ireland 1937, Articles 40.3.1, 40.3.2 and 40.4.1 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 5(1) - Orders made (2011/1208P - Birmingham J - 3/3/2011) [2011] IEHC 73

Re O'B(J): HSE v O'B(J)

Facts In the proceedings the Health Service Executive ("H.S.E.") sought declarations that Mr. J. O'B., the respondent, was a person who lacked capacity to make decisions in relation to his treatment care and welfare. It was sought contended that the respondent was a person in need of appropriate and a continuous regime of clinical, medical and nursing treatment in an environment of therapeutic security and thus an order was sought for his detention at the Central Mental Hospital. It was common case that Mr. O'B. was not suffering from a mental illness or mental disorder as set out in section 3 of the Mental Health Act 2001, and therefore the provisions of that Act were of no application. It fell to be considered as to whether the Court had the inherent jurisdiction to make the order sought. Evidence was given the respondent had been diagnosed as displaying mild to moderate learning disabilities associated with very challenging behaviour. The respondent had displayed challenging behaviour throughout his life including extreme violence at pre-school, numerous assaults, setting fire to a school and physical aggression towards family members, carers, persons known to him and strangers. The respondent was currently in care in the UK and his family were anxious to have him placed with the Health authorities in Ireland.

Held by Birmingham J in making the order sought. The members of Mr. O'B.'s family had been very supportive of his needs and there were very considerable advantages in having him close to home and family. It is also clear that access to a highly skilled forensic nursing team with training and experience in relation to the prevention and management of violence and aggression would be essential. These requirements could be met at the Central Mental Hospital. Where an adult lacked capacity and where there was a legislative lacuna the Court had jurisdiction to intervene. An order of detention would be made with reviews to be made every two months which could be re-addressed once a routine was established.

Reporter: R.F.

1 Judgment of Mr. Justice Birmingham delivered the 3RD day of MARCH 2011

2 This is a novel application.

3 In these proceedings the Health Service Executive ("H.S.E.") seeks declarations that Mr. J. O'B. is a person who lacks capacity to make decisions in relation to his treatment care and welfare; that Mr. O'B. is a person in need of an appropriate and continuous regime of clinical, medical and nursing treatment in an environment of therapeutic security, this being in his best welfare and interest; that the clinical, medical, nursing, therapeutic security, welfare services and treatment at the Central Mental Hospital (C.M.H.), Dundrum, are appropriate to his needs; and an order directing the H.S.E. to detain Mr. O'B in the C.M.H., as well as seeking various ancillary reliefs.

4 What makes this application very unusual, if indeed not entirely unique, is that it is agreed on all sides that Mr. O'B. is not suffering from a mental illness or mental disorder as that term is defined in s.3 of the Mental Health Act 2001 and accordingly it is agreed that the provisions of that Act are of no application.

The Factual Background

5 The applicant was born in 1985 in Cork. Early in life he was diagnosed as displaying mild to moderate learning disabilities associated with very challenging behaviour. He engaged in extreme violence at pre-school and was excluded from national school when aged four years. Placements in other national schools also failed, as did a placement at a special care primary school for pupils with mild learning disability where he was involved in numerous assaults and was suspended on several different occasions. Aged eight, he was placed in a residential hostel operated by a religious order and over the following years moved through a number of different hostels and institutions, most linked to the religious order. Between 1998 and 2004 he attended a specially dedicated school where very considerable resources indeed were allocated to meeting his needs. However, in 2000 he set fire to the school as a result of which he was admitted to a psychiatric hospital for a weekend. Further admissions followed.

6 Throughout this period his behaviour was challenging in the extreme, involving a history of physical aggression towards family members, carers, persons known to him and strangers. He has engaged in serious cruelty towards animals and insects. The Clinical Director of the facility operated by the religious order to which I have referred described Mr. O'B. as showing the features of a "sociopathic personality disorder".

7 When he was eighteen years of age that facility concluded that he required a therapeutic environment providing for people with learning disabilities and personality disorders and that no suitable placement existed in Ireland. Contact was made with the Mental Health Services in Britain but unfortunately placements in a number of different units broke down because of the extremely challenging nature of his behaviour. Ultimately he was transferred to the care of an agency known as "Care Principles", in accordance with the provisions of the Mental Health Act 1983, and since then he has been detained at a number of different facilities operated by them. It may be noted that the legislation in England and Wales contains a broader definition of "mental disorder" than applies in this jurisdiction and this would appear to have permitted the invocation of s. 3 of the English legislation.

8 The application now before the Court is grounded on an affidavit of Professor Henry Kennedy, Clinical Director of the Central Mental Hospital, who has exhibited a number of detailed reports. Professor Kennedy was also called to give oral evidence during the course of which he elaborated on and clarified certain aspects of his grounding affidavit and reports.

9 Professor Kennedy's involvement with Mr. O'B. came about when he was asked to see him by the H.S.E. South. This request was made because the H.S.E. South was anxious to explore whether bringing Mr. O'B. back to Ireland from Britain was feasible and whether it was in his best interest. It should be explained that Mr. O'B. was very anxious to get home to Ireland and that Mr. O'B.'s family members were also very anxious that he should return. Professor Kennedy familiarised himself with the case by reading all available reports, interviewing family members, interviewing his primary carers and travelling to Britain to see Mr. O'B., both in his present location and in the placement where he was previously detained. Then, in January 2009, the Director of Clinical Services with "Care Principles" sought the advice of Professor Kennedy in relation to the management of Mr. O'B. It may be noted that throughout his placement in Britain Mr. O'B.'s behaviour has remained very challenging: he has attempted to bite, punch and kick members of staff and other residents and has punched windows and walls. Twenty five incidents of physical aggression involving spitting at staff, biting, punching, headbutting and slapping staff and fellow residents were recorded at his first placement. Also recorded were incidents of sexually inappropriate comments and gestures. This pattern has continued. While the most common type of incident in which Mr. O'B. has been engaged consists of him spitting and kicking doors, there are also recorded instances of him intimidating female staff members and attempting to touch female staff members and touching the groin of a male staff member. Mr. O'B. has informed the staff that he is sexually frustrated. On the basis of what Professor Kennedy has to say, a number of matters emerge very clearly. These...