Health Service Executive v M.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 01 February 2024
• Neutral Citation: [2024] IEHC 47
• Court: High Court
• Docket Number: [WOC 10970]

In the Matter of M.C., A Ward of Court

And in the Matter of An Application Pursuant to Section 108 of the Assisted Decision Making (Capacity) Act 2015 (As Amended)

Between

Health Service Executive

Applicant

and

M.C. (A Ward of Court Represented by Her Committee, S.C. and B.C.)

Respondent

[2024] IEHC 47

[WOC 10970]

THE HIGH COURT

WARDS OF COURT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 1 ^st February, 2024

Contents

1. Introduction	2
2. Summary of Decision	4
3. Relevant Factual and Procedural Background	6
4. Statutory and Other Provisions Relevant to Section 108 Review	7
5. Evidence before the Court on the Section 108 Review	12
(a) Evidence from the independent consultant psychiatrist	12
(b) Evidence from other practitioner	14
(c) Evidence from the independent solicitor	15
(d) Summary of the evidence	16
6. The Position of the Parties	16
(a) The HSE	16
(1) Section 108(1) review does not require a review of all detained wards	17
(2) In the alternative, if s. 108 review is required, the review should be “discharged”	19
(3) The court retains wardship jurisdiction to detain and regulate the detention of persons such as the ward in this case.	19
(b) The Independent Solicitor	20
(1) The s. 108 review in respect of the ward's detention should proceed	20
(2) The court should not “discharge” or dispense with the s. 108 review	23
(3) The court should exercise its s. 9 wardship jurisdiction to continue the existing orders	23
7. Decision	24
8. Conclusion	33

1. Introduction

1 . The Assisted Decision-Making (Capacity) Act 2015 (as amended) (the “Act” or the “ADMCA”) came into force on 26 ^th April 2023. The Act has given rise to a number of difficult legal issues concerning the detention of persons who were wards of court at the time the Act came into force as well as those who are not wards of court but whose decision-making capacity was, and continues to be, in question.

2 . Some of those legal issues were determined by Hyland J. in judgments she delivered on 7 ^th June 2023, and 6 ^th October 2023, in In the Matter of KK [2023] IEHC 306 and [2023] IEHC 565 (referred to as “ K.K. (No. 1)” and “ K.K. (No. 2)” respectively). Those judgments (which I understand are the subject of an appeal) concerned an application made after the Act came into force to detain a person who was a ward of court, at the time, and who was not suffering from a “mental disorder” and was not the subject of any detention order when the Act came into force. Hyland J. held in K.K. (No. 1) that, following the coming into force of the Act on 26 ^th April 2023, the court no longer had jurisdiction in wardship under s. 9 of the Courts (Supplemental Provisions) Act 1961 (“s. 9 of the 1961 Act”) as continued by s. 56(2) of the ADMCA to make an order detaining a ward where the ward was not the subject of a detention order at the time the Act came into force. Hyland J. held, however, that the court did have jurisdiction to detain such a person under its inherent jurisdiction.

3 . In K.K. (No. 2), Hyland J. considered whether to exercise the court's inherent jurisdiction to detain the ward the subject of that case. She decided that certain additional medical evidence was necessary before the court could exercise its inherent jurisdiction to grant the detention order sought on the facts of that case.

4 . While some of the issues decided by Hyland J. in K.K. (No. 1) and K.K. (No. 2) are relevant to the application with which this judgment is concerned, somewhat different issues arise in this case.

5 . This case involves a person who is and was a ward at the time the Act came into force on 26 ^th April 2023, and who was the subject of a detention order in her current placement, which is not an “ approved centre” under s. 2 of the Mental Health Act 2001 (the “2001 Act”), made by the High Court on 9 ^th December 2021. The detention order was reviewed by the court on 10 ^th March 2022, 13 ^th October 2022 and again on 27 ^th April 2023, the day after the ADMCA came into force. Orders were made continuing the ward's detention in her placement on 27 ^th April 2023 and again on 13 ^th July 2023. Those orders were made by me in exercise of my wardship jurisdiction under s. 9 of the 1961 Act, as continued by s. 56(2) of the ADMCA. A further general wardship review was fixed for 3 ^rd October 2023. In addition, a review under s. 108 of the Act of the order detaining the ward in her placement was also listed for the same date, 3 ^rd October 2023.

6 . In advance of the hearing of both of those reviews that day, the parties exchanged written submissions raising various legal issues. This judgment addresses those legal issues.

7 . Pared down to the core, the essential issue raised by the Health Service Executive (the “HSE”), which is the body which is responsible for operating the placement in which the ward is detained, was that the court is not required to conduct a review under s. 108 of the Act of the order detaining the ward in her placement, in circumstances where the ward is not suffering from a “mental disorder” within the meaning of that term in s. 3 of the 2001 Act, and does not have a consultant psychiatrist who is responsible for her care or treatment for the purposes of s. 108(5) of the Act. The HSE contended that the court is not required to conduct a review under s. 108 as that section applies only to persons who have a “mental disorder” and who were detained in the relevant placement at the time the ADMCA came into force on 26 ^th April 2023 and who continue to be detained at the time of the review. Various further and alternative submissions were also advanced by the HSE.

8 . The HSE's position was that the court should not, therefore, proceed with the review under s. 108 but that it should review the ward's placement (including the detention order) under the wardship jurisdiction vested in the court by s. 9 of the 1961 Act as continued by s. 56(2) of the ADMCA. The HSE applied to the court to continue the existing orders (including the detention order and other restrictive orders) under the court's wardship jurisdiction.

9 . Ms. Aileen Curry, the independent solicitor appointed to represent the interests of the ward on the s. 108 review, fundamentally disagreed with the position adopted by the HSE as to whether s. 108 of the Act required the court to carry out a review of the ward's detention order on the particular facts of this case. She argued that the court was obliged to conduct the review under s. 108 as the ward is a person who was the subject of a detention order made by a wardship court at the time s. 108 came into force on 26 ^th April 2023, and continues to be the subject of that detention order. She argued that the s. 108 review should be conducted by the court irrespective of the fact that the ward does not have a “mental disorder” and does not have a consultant psychiatrist responsible for her care or treatment. While the HSE and the independent solicitor were in total disagreement on this fundamental issue, they were both in agreement that the court continues to have jurisdiction in wardship (as vested in the court by s. 9 of the 1961 Act and continued in force by s. 56(2) of the ADMCA) to continue the existing orders in respect of the ward, including the detention order and the other restrictive orders made in her case. The HSE applied to continue the existing orders, the continuation of which is strongly supported by the independent solicitor.

10 . Therefore, while the HSE and the independent solicitor were in disagreement on the fundamental issue as to whether the requirement to carry out a review of the detention order applied in this case, they agreed that the court has jurisdiction in wardship and should exercise that jurisdiction to continue the existing orders in respect of the ward. Both parties agree that a continuation of the orders (including the detention order and the other restrictive orders) would not be inconsistent with the judgment of Hyland J. in K.K. (No. 1).

11 . This judgment, therefore, addresses the legal issues raised by the parties with the respect to the scope of s. 108 of the ADMCA and seeks to resolve some issues of interpretation arising from that new provision. It then addresses the separate and non-controversial issue of whether I should continue the orders made to date under the court's wardship jurisdiction.

2. Summary of Decision

12 . I have concluded that, properly interpreted, s. 108(1) of the Act requires the court to carry out a review of the detention order made in respect of the ward and the fact that the ward does not have a “mental disorder” and does not have a consultant psychiatrist who is responsible for her care or treatment does not displace that requirement or otherwise render it unnecessary or inappropriate to carry out the review.

13 . The words used in s. 108(1) are, in my view, clear in their own terms, as is their meaning when construed within the overall context of the Act. If the Oireachtas had intended that a review was not required in the case of wards who did not have a “mental disorder” and did not have a consultant psychiatrist responsible for their treatment and care, it could have expressly so provided in s. 108 (1). However, it did not. The fact that the ADMCA, when enacted, did not include a provision expressly providing for the detention of persons lacking decision-making capacity who do not have a “mental disorder” cannot, in my view, affect the proper interpretation of a section which the Oireachtas did enact, namely, s. 108.

14 . Nor, in my view, does the fact that the ward does not have a consultant psychiatrist responsible for her care or treatment mean that the court cannot or should...