Health Service Executive -v- O’B (a person of unsound mind not so found)
Neutral citation (2011) IEHC 73.
High Court
Judgment was delivered on March 3rd, 2011, by Mr Justice George Birmingham.
Judgment
A man with learning disabilities and challenging behaviour was ordered to be placed in the Central Mental Hospital Dundrum. An independent assessment of the hospital’s suitability for his needs will be carried out.
Background
The Health Service Executive was seeking various orders in relation to a 26-year-old man, including that he lacked capacity, that he needed an appropriate and continuous regime of treatment in a secure therapeutic environment, and that the Central Mental Hospital Dundrum met his needs.
Mr Justice Birmingham said that a highly unusual feature of the case was that the man was not suffering from a mental illness or mental disorder as defined in Section 3 of the Mental Health Act, 2001, so it did not apply. The man was represented by his sister, who was appointed his guardian ad litem.
The man was born in 1985 and was diagnosed early in life with mild to moderate learning disabilities, along with very challenging behaviour. He engaged in extreme violence in pre-school and was excluded from national school at the age of four.
Placements in other national schools, including schools for children with special needs, failed because he was involved in numerous assaults.
At age eight he was placed in a residential hostel. Placements in other institutions followed.
In 2000 he set fire to the school he was attending. The clinical director of the facility in which he was placed, operated by a religious order, described him as suffering from a “sociopathic personality disorder”. Throughout these years he was violent towards family members, carers, people he knew and strangers, and was cruel to animals and insects.
When the young man was 18, the facility he was in concluded he required a therapeutic environment catering for people with learning disabilities and personality disorders, but no such facility existed in Ireland.
A number of placements in facilities in the UK broke down because of his challenging behaviour, which included biting, spitting, kicking doors and intimidating female staff.
The man and his family were anxious that he return to Ireland, and the Health Service Executive in his area asked Prof Henry Kennedy of the Central Mental Hospital in Dundrum to consider his case. Prof Kennedy read all available reports, interviewed family members and visited the man in Britain.
Prof Kennedy reported to the court that the man had intellectual disability and autism spectrum traits, arrested or incomplete mental development, with significant impairment of social functioning. He lacked the mental capacity to manage his financial affairs and to make decisions about his welfare in his best interests or his personal care.
He said the man required care and treatment in a facility of medium to high security. The Dundrum facility is the only place in Ireland where this can be provided.
The man’s family was supportive of his needs and willing to work with him, which would be facilitated by his being in Ireland.
Decision
Mr Justice Birmingham said it was absolutely necessary for the man to remain in care if he was to receive the necessary treatment and if his unusual needs were to be addressed.
These included the involvement of a consultant-led multidisciplinary team with specialist nurses with experience of dealing with intellectual disability and highly challenging, including violent, behaviour.
This could only be supplied in Dundrum, and he said he was satisfied it was in the man’s best interests to be detained there. This was also the view of his family and of the man himself.
He then considered the legal basis for the orders sought, in the light of constitutional and European Court of Human Rights guarantees of the right to liberty, subject to specific exceptions.
Both the Irish High and Supreme Court and the English courts had considered this issue.
“Where an adult lacks capacity and where there is a legislative lacuna so that the adult’s best interests cannot be served without intervention of the court, I am satisfied that the court has jurisdiction, by analogy with cases like DG and the several High Court decisions . . . there referred to, to intervene,” he said.
On the question of what structures were needed as safeguards, he said there would be a lengthy requirement that the man remain in care while detained. The orders proposed involved a serious interference with the right to liberty which must be reviewed on a regular basis, and would have to be justified on a regular basis. He intended to review this case at an early stage once the man had taken up residence in Dundrum, and regularly thereafter.
Counsel for the guardian at litem had said he would seek an independent professional report on the Dundrum facility’s suitability for the man’s needs, although it was very much the view of his sister and parents that it was. While not for a moment suggesting otherwise, Mr Justice Birmingham said he considered the suggestion a worthwhile one, and asked the HSE to facilitate this.
Subject to putting in place the supports and safeguards specified, he granted the orders sought.
The full judgment is on courts.ie
Felix McEnroy SC and Conor Dignam, instructed by Byrne Wallace, Dublin, for the HSE; Tim O’Leary SC and Sinead Behan, instructed by Coakley, Moloney solicitors, Cork, for the guardian