An 18-year-old woman with a personality disorder has written a letter to the Minister for Health and a poignant poem to the HSE appealing for her return to Ireland after 19 months detention in a secure psychiatric hospital in the UK.
The woman has spent almost all of the past four years, since aged 14, in psychiatric facilities here and the UK with little improvement in her condition but the HSE wants an order continuing her detention in the UK because it believes she is a high suicide risk and is safest there, the High Court heard.
The woman’s situation raises serious and what her counsel described as “profound” issues under the Constitution and European Convention on Human Rights concerning the High Court’s powers to make orders for the involuntary detention of adults with personality disorders, when the Mental Health Acts exclude such detention for adults with personality disorders.
In her poem opposing the HSE’s application, the woman asks:
“How can you be so afraid of an eighteen year old?
Too much risk of finding her cold.”
It also states:
“If there’s truly no service, put a bespoke one in place.
Stop hesitating, because it’s a disgrace.
My mood hasn’t deteriorated and my suicide risk hasn’t increased.
I’m only eighteen, I don’t want to be pronounced deceased.
Just give me a chance to prove all that I have to give,
I have my whole life ahead of me yet to live.
Stop hoping I will break under your bait.
Please in me have just a little faith.
I have nothing over here,
Nothing anyway that I hold dear.
No family or friends to comfort me,
Just locked doors to which I don’t hold the key.
This is not the kind of life I want to lead,
This is not the kind of treatment I need,
I miss my culture, the Irish dance,
Let me come back, let me have a chance.
Please don’t make me stay here another day.
This is all I have to say.
I hope you take the chance to listen to my concerns,
And put in place the plans for my return.”
Mr Justice Seamus Noonan was told that the HSE considers, based on medical evidence, the woman is a serious suicide risk and there is no suitable facility to keep her safe here.
He agreed her letters to the Minister and Junior Minister for Health were “intelligent” and described her poem as “sophisticated”.
Gerard Durcan SC, for the woman, argued the court has no power to make a “most serious” order affecting her liberty and autonomy, subjecting her to compulsory medication and treatment, detention in locked wards and observation for periods as frequent as every five minutes.
This was a regime more severe than prison and amounted to unlawful “preventative detention”.
While accepting there was a high risk, she had spent almost two years in facilities here without taking her own life and is very unhappy in the UK, counsel said.
There may be “very significant” risks but there is an actual deprivation of autonomy day in and day out, he said. After almost four years of detention without improvement, the question is, when does it stop? he said.
“Do we detain her against her will forever?”
A core issue in the case concerns the woman’s capacity to make decisions. The HSE argues she does not have the necessary capacity while her lawyers argue she has.
Capacity is about the ability to make decisions, not about the quality of decisions, Mr Durcan argued. It was not appropriate or lawful for a court to override an unwise decision, no matter how unwise, particularly if the unwise decision is caused by a person suffering from a personality disorder.
A personality disorder is not a ground for detention under the Mental Health Acts and that was a clear policy decision by the legislature, he said. That was different from English law which allows for detention of persons with personality disorders.
One doctor who gave evidence to the High Court in March consistently said the woman has capacity to make decisions about medication and placement and said she makes unwise decisions, counsel said.
Another doctor who assessed her for the HSE said she has “fluctuating capacity” but when he saw her earlier this year he found she had capacity, her wishes were reasonable and should be met. He found she had capacity to marry, make a will and a contract and to make decisions on her treatment.
The woman's estranged mother and father, and court-appointed guardian, separately represented respectively by Conor Dignam SC, Ciaran Craven SC and Matthias Kelly SC, all stressed their priority is her safety and their preference was she be treated here if possible.
Mr Kelly suggested a "bespoke" facility could be designed to treat her here and argued the woman's rights under the Constitution and ECHR amounted to "empty rhetoric" unless given effect to.
Earlier, Tim O’Leary SC, for the HSE, said another High Court judge last March directed the woman should be returned here but the HSE argued circumstances had changed since, the woman’s condition had deteriorated and she could not be kept safe here. The HSE has appealed aspects of the March order.
The woman, who disputes here condition has deteriorated, had agreed to undergo voluntary treatment at a hospital here if returned, the court also heard.
During yesterday’s hearing, Mr Justice Noonan remarked it was not clear to him why the woman could not be kept safe here. Mr O’Leary said the situation would be “completely different” if she fell under the Mental Health Acts because she could be kept in a secure setting.
The case continues.
