Health Service Executive v T.M.

JudgeMs. Justice Bronagh O'Hanlon
Judgment Date27 October 2016
Neutral Citation[2016] IEHC 593
Date27 October 2016
CourtHigh Court
Docket Number[Record No: 2015/ 8041 P] [Record No: 2012/ 3857 P]







[2016] IEHC 593

[Record No: 2015/ 8041 P]

[Record No: 2012/ 3857 P]


Constitution – Detention of an adult for medical treatment – Art. 40.3 of the Constitution – Inherent jurisdiction – Mental Health Act 2001- Capacity to consent – Sufficient intellectual capacity – Step down regime

Facts: The present case is concerned with the detention of an adult defendant for medical benefits. The defendant, who was detained at a hospital in the jurisdiction of England under the orders of the High Court of Ireland, had voluntarily returned to a healthcare facility in the present jurisdiction (Ireland) as an adult, pending the determination on the issue of his decision-making capacity. The key issue in the present case was whether the defendant lacked the capacity to consent to the medical treatment so as to require the High Court to invoke its inherent jurisdiction to detain the defendant. The defendant had argued against the decision to detain the defendant in a foreign state.

Ms. Justice Bronagh O'Hanlon held that the present case was not a case that would have required the High Court to invoke its inherent jurisdiction to detain the defendant. The Court, based on the medical evidence, found that the defendant did not meet the criteria of mental disorder under s. 8 of the 2001 Act and was not detainable under the 2001 Act. The Court, based on the findings of the doctor, held that the defendant had sufficient intellectual capacity to understand the treatment information, retain such information, weigh alternative options and communicate the decision. The Court held that the risk of future harm associated with the transition of the defendant from a healthcare facility to a non-secure facility was not a legitimate factor to detain an adult person. The Court held that the defendant was entitled to the practice of step down regime under the supervision of the Court to ensure the defendant's best interest. The Court held that the defendant was found to be sufficiently stable for being transitioned back to the jurisdiction of Ireland.

JUDGMENT of Ms. Justice Bronagh O'Hanlon delivered on the 27th day of October, 2016

T.M., the subject matter of these proceedings, was born 8th October, 1997 and has been subject to orders of the High Court detaining him in St. Andrew's Hospital, Northampton, England for therapeutic and educational purposes. He voluntarily returned to Nua Healthcare on 24th October, 2016 having attained the age of majority and pending a decision of this Court on capacity. T.M. was first placed as a minor in St. Andrew's on 16th November, 2012 pursuant to the inherent jurisdiction of the High Court and Article 56 of Council Regulation (EC) No. 2201/2003. T.M. is an Irish citizen and at all material times has been and remains domiciled and habitually resident in this State.


Article 56 of the Council Regulation (EC) No. 2201/2003 of 27th November, 2003 ‘Concerning Jurisdiction and the Recognition of Judgments in Matrimonial Matters and the Matters of Parental Responsibility’ states as follows:-

‘Placement of a child in another member State

1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.

2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.

3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.’


Since T. became an adult, EC Regulation 2201/2003 has no longer been applicable. Therefore, on foot of orders from the Irish High Court, the plaintiff Health Service Executive, its servants or agents, made an application to the Court of Protection in England pursuant to the provisions at Part 4 of Schedule 3 of the English Mental Capacity Act 2005 seeking an order for the enforcement and recognition of the Irish High Court orders. This procedure was accepted by Baker J. of the English Court of Protection in the case of Health Service Executive of Ireland v. P.A. & ors [2015] EWCOP 38. Baker J. recognised and enforced orders of the Irish High Court similar to those in this case and noted that certain procedural safeguards were to be in place and that a regular review of the treatment and circumstances of the detained individual must be held in order to prevent the orders from being manifestly contrary to public policy. This procedure has been in place and the English Court of Protection has enforced the Irish High Court orders in this case in a similar fashion.


T.M. attained his majority on 8th October, 2015 and in order to detain a person under the inherent jurisdiction beyond their eighteenth birthday that person must lack the capacity to consent to medical treatment. The issue of whether T.M. has capacity is the significant issue remaining in this case.


This Court found, as set out in the order of 7th October, 2015, that T.M. has capacity to instruct a solicitor and to defend the proceedings herein represented by his solicitor. That order also held that T.M. lacked the capacity to make material decisions in respect of medical, nursing and psychiatric treatment and related welfare and therapeutic services or to make decisions regarding his accommodation for the purposes of receiving such treatment and services. This Court ordered that T.M. continue to be detained in St. Andrew's in order to facilitate the HSE in providing a step down placement with Nua Healthcare. An appearance was entered for T.M. on 15th October, 2015.


This Court ordered on 29th October, 2015 that an independent psychiatric assessment of T.M. be carried out and a report furnished to the Court.


The Statement of Claim lodged by the HSE dated 13th April, 2016 stated that, upon attaining his majority, T.M., by reason of an impairment of his personal faculties, will not have the capacity to protect his own interests or to make material decisions in respect of medical, nursing and psychiatric treatment and related welfare and therapeutic services or to make decisions regarding his accommodation for the purposes of receiving such treatment and services. At that point, they were seeking his continued detention in St. Andrew's although they also sought orders to facilitate T.M.'s return to Ireland and, in particular, in relation to the step down facility with Nua Healthcare in the Midlands.


The Defence filed on behalf of T.M. dated 25th April, 2016 stated that this Court does not have the jurisdiction or authority to detain T.M. in a foreign State, in the absence of the Oireachtas legislating in that regard. Counsel for T.M. also stated in that Defence that the HSE are not entitled to the reliefs sought as they are misconceived and/or unknown to the law and/or outside the jurisdiction of the Court and/or inconsistent with the personal rights of T.M. as enshrined in the Constitution.


The current position of the HSE is that T.M. has been transitioned out of St. Andrew's to Nua Healthcare in Ireland. The HSE opened this case on the basis that, while they do put forward medical evidence to suggest an impairment in the capacity of T.M., their position is that it is not of a degree to rob him of his decision making capacity. The HSE solution as of May, 2016 was that they have sought to transition T.M. back to Ireland to a Nua Healthcare facility. The plaintiffs set out that, while the patient was sent to St. Andrew's Hospital for therapeutic benefit, there had been a stagnation in the last twelve months and there had not been the necessary improvement. In all the circumstances, the plaintiffs were not prepared to stand over the level of detention for T.M. as of May, 2016. The Child and Family Agency were also represented as they provide after care services.


Counsel appeared on behalf of the defendant himself and indicated that he naturally wanted to come back to his own country and would engage with the step down and transitional processes. He wished to have a limited or finite period for this process. Counsel for the guardian ad litem outlined that the guardian was in support of the Nua Healthcare plan. She accepted that there were risks involved but that any continued detention was no longer proportionate.


The position of the mother of T.M. as outlined by her counsel on a number of occasions is that she has concerns that Nua Healthcare is unlikely to succeed and that it is her belief that it is unsafe to move him from St. Andrew's Hospital to Nua Healthcare. The mother's position is that he is making slow but steady progress and, therefore, continues to gain a therapeutic benefit from his detention in St. Andrew's.

Summary of the Evidence

Dr. Larkin Feeney, Consultant Psychiatrist and Senior Lecturer in Psychiatry with Cluain Mhuire Community Mental Health Services and the Royal College of Surgeons in Ireland, gave evidence on 10th May, 2016. Dr. Feeney provided a report dated 19th October, 2015 and an updated report dated 29th April, 2016 to the Court which he adopted into his evidence.


Dr. Feeney recognised that T. has made progress in the almost 4 years that he has been detained in St....

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