Health Service Executive v K.W and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Bronagh O'Hanlon
• Judgment Date: 12 March 2015
• Neutral Citation: [2015] IEHC 215
• Court: High Court
• Date: 12 March 2015

[2015] IEHC 215

THE HIGH COURT

[Record No: 459P/2015]

Health Service Executive (HSE) v W (K) & Ors

IN THE MATTER OF K.W., A MINOR WHO MAY BE A VULNERABLE ADULT UPON HER REACHING THE AGE OF MAJORITY ON THE 25 th DAY OF JANUARY 2015

AND

IN THE MATTER OF AN APPLICATION TO PLACE K.W. IN SECURE ACCOMMODATION IN THE CUSTODY OF THE DIRECTOR OF ST. ANDREW's HEALTHCARE, BILLING ROAD, NORTHAMPTON, NN1 SDG, U.K.

AND

IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT

BETWEEN:

HEALTH SERVICE EXECUTIVE

APPLICANT

AND

K.W

RESPONDENT

AND

L.R AND J.T

NOTICE PARTIES

AND

RAYMOND MCEVOY GUARDIAN AD LITEM ON BEHALF OF K.W.

Mental Health – Mental Capacity – Involuntary Detention – Article 40 of the Irish Constitution 1937

Facts: The High Court periodically reviewed an order made authorising the removal of a minor (‘K.W.’) from Ireland to a specialist hospital in England. The court reached its decision based on assessments from two child psychiatrists that no suitable treatment facility existed in Ireland for K.W. When K.W. reached the age of majority the court made further orders with the consent of the applicant, the guardian ad litem and K.W.”s parents in relation to K.W”s capacity. These orders stated that K.W. lacked the capacity to make informed decisions in relation to her treatment and support. The court had to determine if it had jurisdiction to further detain K.W. in order to protect her rights under Article 40 of the Irish Constitution 1937. The court considered a report from a medical expert on behalf of the Health Service Executive; K.W.”s desire to return to Ireland and the submissions of the guardian ad litem.

Held by O'Hanlon J: The court accepted the expert medical opinion provided by the Health Service Executive. The medical expert stated that KW”s mental illness would continue to fluctuate and she lacked the capacity to understand information and make decisions. Based on this evidence, the court concluded that K.W. lacked the capacity to appreciate the seriousness of her condition and make her own decisions regarding her medical treatment and therapy. As a result, K.W.”s rights under Article 40 of the Irish Constitution were endangered thus warranting the court intervention. The court had a duty to intervene to vindicate K.W.”s rights in a proportionate way. It rejected the submissions made by the guardian ad litem that K.W. should remain in the English hospital. The court said it was disproportionate and K.W. should be allowed to return to Ireland. The court exercised its jurisdiction to detain K.W. involuntarily as a psychiatric patient in a hospital in Ireland due to the high risk of suicide and/or self-harm.

1 1. Previous proceedings were in being in this jurisdiction entitled "Health Service Executive v. "K.W.", a minor represented by her guardian ad litem, Raymond McEvoy, Record No 2013/ 10243P". By order of Birmingham J. dated the 12 ^th November, 2013, the applicant was authorised to remove the then minor from this jurisdiction and to place her in the Heritage Ward, Lowther Unit, St. Andrew's Healthcare, England. The High Court of Ireland reviewed the aforesaid order on a periodic basis.

2 2. During that process, Dr. Dermot Cohen, Consultant Child and Adolescent Psychiatrist and Dr. Susan O'Hanrahan, Child and Adolescent Psychiatrist, were engaged at the request of the High Court to provide an assessment in relation to "K.W" and their collective view was that there was no alternative placement available for "K.W." that could provide suitable treatment to her in this jurisdiction.

3 3. "K.W." reached the age of majority on the 25 ^th January, 2015.

4 4. On the 22 ^nd January, 2015, orders were made by consent of the parties including the applicant, the guardian ad litem appointed on behalf of "K.W.", and her parents, the notice parties, declaring;

2 (1). That "K.W." is a citizen of Ireland and domiciled ordinarily resident and habitually resident in Ireland;

3 (2). That there is sufficient evidence to justify a reasonable belief that "K.W." may lack the capacity to make an informed decision as to the need for treatment and support in St. Andrew's, Billing Road, Northampton, England to secure her own personal safety, or evidence that gives cause for concern, or raises a real possibility that "K.W." may lack such capacity. That in the interim, and pending a determination with respect to her capacity to make decisions regarding her treatment and placement, "K.W." is a vulnerable person in need of protection pursuant to the inherent jurisdiction of the High Court;

4 (3). That a determination has yet to be reached with respect to the capacity of "K.W." to make an informed decision;

5 (4). That "K.W.", is in need of specialised care, therapeutic and welfare services, the effective provision of which requires that she be detained temporarily in a secure place;

6 (5). That "K.W.", is in need of specialised care, therapeutic and welfare services, that are not currently available in this jurisdiction;

7 (6). That "K.W." is at serious risk of causing harm to herself if she does not receive the appropriate treatment. That Article 2 of the European Convention on Human Rights provides that everyone's right to life shall be protected by law;

8 (7). That the orders obtained in respect of "K.W." in the proceedings entitled "Health Service Executive v. "K.W.", a minor represented by her guardian ad litem, Raymond McEvoy, Record No 2013/ 10243P" expire and cease to have effect upon her reaching the age of majority on the 25 ^th day of January, 2015, and the orders obtained in these proceedings, pursuant to the inherent jurisdiction of the High Court regarding a vulnerable adult who may lack capacity to have immediate effect upon "K.W." reaching the age of majority on the 25 ^th day of January, 2015;

9 (8). That the court takes cognisance of "K.W.'s" rights pursuant to Article 5 of the European Convention on Human Rights and this Court is satisfied that "K.W." is suffering from a mental disorder of a kind or a degree warranting compulsory detention for a period of time. This Court made the following orders:

a (a.) That pursuant to section 27(1) of the Civil Law (Miscellaneous) Provisions Act 2008 and the inherent jurisdiction of the High Court, the publication and broadcast of any matter relating to the proceedings which would or would be likely to identify "K.W." is prohibited.

b (b.) That an adult forensic psychiatrist is authorised to conduct an assessment of "K.W." after she reaches the age of majority on the 25 ^th day of January, 2015, so as to report to the Court on the issue of her capacity to make decisions regarding her placement and treatment.

c (c.) That pursuant to the inherent jurisdiction of the High Court, "K.W." be detained in the Heritage Ward, Lowther Unit, St. Andrew's Healthcare, Billing Road, Northampton, where she was placed pursuant to order of this Honourable Court dated the 12 ^th November, 2013 in proceedings entitled "Health Service Executive v. "K.W.", a minor represented by her guardian ad litem, Raymond McEvoy, Record No. 2013/ 10243P for the purpose of facilitating an assessment by an adult forensic psychiatrist with respect to the capacity of "K.W.", and to provide for welfare and therapeutic services including such measures as are necessary to protect "K.W." and to prevent her from acts of self-harm pending further order of this Court.

d (d.) That the Director of St. Andrew's Healthcare, Billing Road, Northampton, be permitted to detain "K.W." for the purposes of facilitating an assessment by an adult forensic psychiatrist of the capacity of "K.W." pending further order of this Court, and for the proposes of providing therapeutic and welfare services including such measures as are necessary to protect "K.W." and to prevent her from committing acts of self-harm.

e (e.) That the assessment of the capacity of "K.W." by an adult forensic psychiatrist should take place as soon as possible and there should be no delay regarding such an assessment.

f (f.) That the Health Service Executive, its servants or agents be permitted to provide any and all consents and permissions required by the Director of St. Andrew's Healthcare, Billing Road, Northampton arising from the care and maintenance and detention of "K.W." in St. Andrew's Healthcare, Billing Road, Northampton pending further order of this Honourable Court.

g (g.) That the Health Service Executive, its servants or agents be directed to provide all necessary and/or incidental data, documentation and information in relation to the care, protection and welfare circumstances of "K.W." a minor to the Director of St. Andrew's Healthcare, Billing Road, Northampton.

h (h.) That the Director of St. Andrew's Healthcare, Billing Road, Northampton, and all and any of their multidisciplinary team including clinical, care or similar professional and/or ancillary healthcare staff under his or her direction and control be permitted to take all clinically appropriate steps (including the provision of consent or permission for any educational, medical, occupational, psychiatric, psychological or other similar assessment or treatment), that are properly required in accordance with their clinical professional judgment to promote and protect the care, protection and welfare circumstances during her detention there, having regard to the fact that a determination has yet to be made with respect to the capacity of "K.W.".

i (i.) That the Director of St. Andrew's Healthcare, Billing Road, Northampton, be permitted in the exercise of his or her professional judgment in relation to the continuing care, protection and welfare circumstances of "K.W.", provide for and regulate an appropriate regime of mobilities for "K.W." both within and outside St. Andrew's Healthcare, Billing Road, Northampton, (including where...