Y (X) (A Minor) v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 07 November 2013
• Neutral Citation: [2013] IEHC 490
• Court: High Court
• Docket Number: [2013 No. 4413 P]
• Date: 07 November 2013

[2013] IEHC 490

THE HIGH COURT

[No. 4413 P/2013]

Y (X) (a minor) v Health Service Executive

BETWEEN

X. Y., A MINOR SUING BY HER GUARDIAN AD LITEM, RAYMOND McEVOY

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE

DEFENDANT

AND

THE ATTORNEY GENERAL AND THE IRISH HUMAN RIGHTS COMMISSION

NOTICE PARTIES

MENTAL HEALTH ACT 2001 S25(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

Y (X) (A MINOR), IN RE; HEALTH SERVICE EXECUTIVE v M (J) & P (R) 2013 1 ILRM 305 2013 IEHC 12

MENTAL HEALTH ACT 2001 S25

G (B) v DISTRICT JUDGE MURPHY & ORS (NO 2) 2011 3 IR 748 2011/22/5806 2011 IEHC 445

CONSTITUTION ART 40.1

MENTAL HEALTH ACT 2001 S25(1)

MENTAL HEALTH ACT 2001 S25(2)

MENTAL HEALTH ACT 2001 S25(7)

MENTAL HEALTH ACT 2001 S4

MENTAL HEALTH ACT 2001 S25(8)

MENTAL HEALTH ACT 2001 S25(9)

MENTAL HEALTH ACT 2001 S25(10)

MENTAL HEALTH ACT 2001 S25(12)

MENTAL HEALTH ACT 2001 S25(13)

MENTAL HEALTH ACT 2001 S61

MENTAL HEALTH ACT 2001 S25(14)

CHILD CARE ACT 1991 S24

CHILD CARE ACT 1991 S25

CHILD CARE ACT 1991 S26

CHILD CARE ACT 1991 S27

X (M) [APUM] v HEALTH SERVICE EXECUTIVE 2013 1 ILRM 322 2012/46/13921 2012 IEHC 491

T (R) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL 1995 2 IR 65 1995 2 ILRM 354 1995/5/1664

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79

GILLICK v WEST NORFOLK & WISBECH AREA HEALTH AUTHORITY & DEPT OF HEALTH & SOCIAL SECURITY 1986 AC 112 1985 3 WLR 830 1985 3 AER 402

X v FINLAND UNREP 3.7.2012 2012 ECHR 1371 (APPLICATION NO 34806/04)

CHILD CARE ACT 1991 S47

MENTAL HEALTH

Children

Treatment - Best interests - Involuntary patient - Child refusing to take medication - Whether s. 25(6) of Act of 2001 repugnant to Constitution - Whether forceful administration of treatment and physical restraint lawful - Whether District Court should automatically appoint guardian ad litem - BG v Judge Murphy [2011] IEHC 445, [2011] 3 IR 748; RT v Director of the Central Mental Hospital [1995] 2 IR 65; In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79; X v Finland (App. No. 34806/04) (Unrep, ECHR, 3/7/2012); MX v Health Service Executive [2012] IEHC 491, [2012] 3 IR 254 and In re XY [2013] IEHC 12, [2013] 1 ILRM 305 considered - Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 distinguished - Child Care Act 1991 (No 17) - Mental Health Act 2001 (No 25), ss 4 and 25(6) - European Convention on Human Rights Act 2003 (No 20), s 5 - Relief refused (2013/4413P - Birmingham J - 7/11/2013) [2013] IEHC 490

XY (a minor) v Health Service Executive

Facts: The applicant was a sixteen and half year old girl who suffered from bipolar affective disorder. As a consequence, she was hospitalised on a number of occasions, including a stay from the 3rd July 2012 at Merlin Park Child and Adolescent Mental Health Service Inpatient Unit following a suicide attempt by her. On the 15th October 2012, the defendant made an application for an order pursuant to s. 25(6) of the Mental Health Act 2001 ('the 2001 Act') providing for her detention. Such an order was eventually made by the District Court, with the applicant"s parents consenting to the application. Since that time, the applicant had occasionally refused treatment, which resulted in physical restraint and forcible administration of treatment on her. By her guardian ad litem, the applicant initiated proceedings by way of plenary summons seeking declarations that s. 25(6) was repugnant to the Constitution of Ireland and incompatible with the European Convention on Human Rights. She also sought a declaration that the physical restraint and forcible administration of treatment on her since she was admitted to Merlin Park Child and Adolescent Mental Health Service Inpatient Unit was unlawful.

The applicant argued that s. 25(6) of the 2001 Act permitted the detention of minors without providing any adequate safeguards for a minor who is objecting to detention and, thereafter, to the forcible administration of medication. By comparison, it was said that adults in a similar position could avail of greater statutory protection. It was averred that this discrimination in treatment was unjustified. In that regard, it was pointed out that minors do not have their detention reviewed by the Mental Health Tribunals, that the District Court can and does act on the report of a single psychiatrist who may be the treating psychiatrist, and that there is no statutory obligation to notify the Mental Health Commission of the making of the order under s. 25. Alternatively, it was argued that the Court should make declarations to ensure certain safeguards were put in place for the applicant i.e. declarations dealing with the necessity for the District Court to appoint a guardian ad litem, for the guardian to obtain and put before the Court independent expert medical reports, and that when particular forms of treatment were regarded as appropriate or necessary, for this to be communicated to the Court and its approval sought.

Held by Birmingham J that the applicant"s assertion that minors were afforded less statutory protection than adults in regards to detention and treatment was without foundation. It was said that s. 25 of the 2001 Act should be read in full and alongside the provisions of Child Care Act 1991 ('the 1991 Act'), which cumulatively offered significant safeguards to children. It was determined that the legislative effect of these statutes offered a more paternalistic and protective approach to minors than for adults, as evidenced by the necessity of approval of the Court for certain actions to be taken. Further, if a court deemed it important to allow a minor to express his or her views, it had the option of joining the child as a party, appointing a guardian ad litem or seeking an independent report. It was also noted that when the defendant had wished to take blood samples from the applicant, it had brought the matter before the High Court, where the minor exercised her right of access to justice and had the option of making her views known. The fact that the guardian ad litem had not sought to argue that the applicant"s detention and treatment was not in her best interests was also considered noteworthy. For these reasons, it was held that whilst the 2001 and 1991 Acts could be improved upon, significant safeguards were in place that ensured constitutional compliance. It was further held that whilst the arrangements for children differed from that of adults in some respects, they were by no means inferior; therefore, there was no invidious discrimination to speak of.

In regards to the applicant"s assertion that the Court should make certain declarations to ensure certain safeguards were in place for her, it was held that the declarations sought would not be of benefit. It was said that the Court had already appointed a guardian ad litem and sought an independent report seeking a second opinion on her treatment. Further, the applicant could express her views on her treatment when the matter next came before the District Court or raise issues on the appropriateness of her treatment before the High Court. For those reasons, it was held that there was no need to make any of the declarations sought.

Claim dismissed.

1 1. In this case the plaintiff seeks a declaration that s. 25(6) of the Mental Health Act 2001 is repugnant to the Constitution or, alternatively, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 25(6) is incompatible with the European Convention on Human Rights. Also sought is a declaration that the forcible administration of treatment to the plaintiff and her physical restraint by the defendant since her admission to hospital is unlawful.

2 2. The issues that arise for consideration now are a sequel to an earlier judgment delivered by me on the 16 ^th January, 2013, in Re X. Y. [2013] 1 I.L.R.M. 305. There, I set out the facts in some detail and this judgment should be read in conjunction with that judgment, but to recap, the plaintiff is now sixteen and a half years of age. She has been diagnosed with bipolar affective disorder. The plaintiff was hospitalised on a number of occasions and on the 3 ^rd July, 2012, she was transferred from an adultpsychiatric unit to Merlin Park Child and Adolescent Mental Health Service Inpatient Unit following a suicide attempt. Of note is that on the 15 ^th October, 2012, the Health Service Executive (HSE) made an application for an order pursuant to s. 25 of the Mental Health Act providing for her detention. The plaintiff minor was not present in Court for the hearing nor was she legally represented. However, her parents were present and consented to the order sought. A letter from the plaintiff setting out her views was submitted to the Court and considered by Judge Mary Fahy of the District Court.

3 3. In October 2012 the plaintiff was prescribed Olanzapine. On occasions she refused to take the prescribed medication and on these occasions the medication was administered by injection, which involves physical restraint.

4 4. On the 5 ^th November, 2012, the defendant, for reasons set out in greater detail in the earlier judgment, was anxious to obtain a blood sample from the plaintiff. However, she refused to provide one. In these circumstances, the defendant applied ex parte for an order permitting the taking of blood samples forcibly. The taking of blood samples is regarded as necessary to guard against the development of very serious side effects which can be associated with anti-psychotic medication. I adjourned the application so that the plaintiff could be separately represented, appointing a solicitor to act as guardian ad litem for her. The solicitor in question is highly experienced in this area of law. She was, as I have indicated, originally appointed as guardian ad litem,...