In “disturbing” case, High Court refuses wardship for young person leaving secure care – 2020vol2#5

A contested wardship case, involving an 18-year-old [A] who had reached her age of majority in special care, came to an end when the young person was deemed by three psychiatrists to have capacity and the CFA subsequently withdrew their petition as this meant she was not eligible for wardship. However, prior to the interlocutory orders for her continued detention in special care being discharged, submissions were made by counsel for the respondent and the case continued for a number of days.

The issues in the case were whether the court had any jurisdiction to make a wardship order when three psychiatrists had said the girl had capacity; and whether information she had given to the guardian ad litemshould be disclosed to Gardai who were investigating threats she had made. Her reluctance to stay in the residential facility made available for her, as opposed to secure care, was also discussed.

The President of the High Court described the case as “the most disturbing I have had to decide in the 12 years I have been doing this job.”

The petition for wardship was commenced in late 2019 prior to A attaining her majority. It was contested by A who was living within the secure environment of a special care unit. She had spent nearly two years in special care by the time of the court hearing and had been under care orders since early adolescence.

Prior to reaching her age of majority in late 2019, A had engaged in two separate assessments of her capacity with two psychiatrists who had found her lacking in capacity. The first medical report, produced by psychiatrist X, found that A was then unable to make decisions regarding her welfare or health in her own best interests. The second medical report, by psychiatrist Y, found that the respondent met the legal test of being a person of unsound mind who was then not capable of managing her affairs. A consultant psychiatrist, a medical visitor appointed on behalf of the court as a result of the petition produced a medical report in early 2020 which concluded that A was of unsound mind and incapable of managing her affairs.

However A contested the wardship petition, registering her objection and supported in her objection by a professor of psychiatry, who was satisfied that A did not have a mental disorder such that she could be detained under the Mental Health Act 2001, but instead she found A to have a severe personality disorder.

Subsequently and consequently, further psychiatric assessments were required. Three psychiatrists had carried out the assessments, producing medical reports and evidence had been obtained for the purposes of dealing with the capacity issue alone. The psychiatrist who produced a report in mid-2020 on behalf of the HSE found the respondent had capacity, that she had a number of disorders and felt that she would benefit from being in a multidisciplinary facility with a minimum of medium level security. Psychiatrist X produced a second medical report in autumn 2020, and concluded that the respondent did not have a medical disorder as defined by the Mental Health Act 2001, he was now  that she had capacity. This assessment was carried out nearly one year after the first assessment by him.

They were unanimous that A was found to have capacity. A third psychiatrist, a consultant psychiatrist practising in the UK, also produced a report, and he accepted that the respondent had legal capacity and the personality disorder from which she suffered gave no grounds for compulsory psychiatric treatment under the Mental Health Act 2001. However, one line which cast doubt upon that decision was as follows: “It was arguable that the respondent had some impairment of her capacity because of developmental immaturity”.

Senior counsel for the CFA told the President of the High Court, who was hearing the case, that it would be improper to continue with the petition for wardship. However, he asked the court to defer making the final orders on the wardship to allow a structured and managed transition of the young adult out of special care into her community placement. The CFA had been in liaison with An Garda Siochana and had been asked to disclose to them the psychiatric reports. The senior counsel told the court that the disclosure of those reports would raise an issue with regards to public interest and confidentiality, and balancing public interest.

There was a very compelling public interest argument because of the risk argument, said senior counsel for the CFA. They would endeavour to produce a social work report which would summarise the risks but that did not include admissions.

The senior counsel for the young adult, A, told the court that he had instructions to consent to the adjournment although he had not had the opportunity as yet to consult with his client in person. He confirmed that although he was not instructed, he was in a position to agree final orders being made the following week. With regards to the disclosure of psychiatric reports to An Garda Siochana, he did not have specific instructions in relation to that yet and had grave reservation in relation to some of the far-reaching responses his client had made to questions.

The President remarked that perhaps he would be able to get instructions from his client with regards to the ideation aspect.

The senior counsel for the mother said that An Gardai Siochana and his client were in agreement that it was urgent the mother relocate, this relocation would depend upon the help and cooperation of a local authority. The court stated that she could “think of nothing more imperative than the safety and the life of [the mother], this is a matter that should go to the top of the local authority list, to the top of rehousing.”

With the agreement of all the parties, the petition was put back to the following week and the interlocutory orders extended.

When the hearing returned the following week the court heard that the aftercare report had been submitted to the parties over the weekend. A’s aftercare placement would have heightened provisions and protections. It was proposed that seven male staff and extra staff would be assigned to the proposed community placement for A, and that she would be asked to sign a contract to abide by certain conditions.

Senior counsel for the CFA acknowledged that if A did not agree to participate according to those conditions, and decide not to take up the placement and refuse treatment, there was nothing that could be done as she would be in the same position as any other 18-year-old coming out of special care. However, An Garda Siochana were involved as well as the HSE and there were mechanisms for close contact between all of the professionals concerned.

Senior counsel for the CFA then told the judge that under those premises he was seeking to have the orders in the special care unit vacated and the petition for wardship dismissed. He added that anything that happened in the present wardship application did not prevent another one in the future.

However, counsel for the mother was opposing the lifting of the interlocutory orders as two issues required urgent attention, one of which was the safety risk assessment.

The judge then asked how, if the petition was being withdrawn, could the interlocutory orders be in place, those orders supported a substantive relief so if there was no substantive relief being sought how could an interlocutory order exist within a vacuum?

Counsel for the mother submitted that the court had an inherent jurisdiction that could be exercised. His client’s primary issue during a difficult relocation and upheaval was the declaration of intent by her child to commit a serious crime. There was neither a risk assessment nor a safety plan finalised by the social work department, “what is the safety plan, what about the people who live in that locality, have people been warned about what is happening?” he asked.

The judge replied that regardless of what safety measures were provided for in any placement the respondent could chose to completely ignore the placement and the safety plan at any time because she was not being detained. A had a disorder but could not be detained under the Mental Health Act 2001 either as she had been found to have capacity. “The reality of the situation is that the respondent either choses to act in a responsible fashion or she doesn’t. Isn’t that the terrible position we’re in?”

Counsel for the mother agreed and said that he was asking for the matter not to be immediately disposed of in order to protect those in the immediate vicinity of the community placement.

The judge replied that it had been agreed that A’s various medical conditions and adjustment disorders did not fall under the Mental Health Act 2001 and therefore she could not be detained under it. It was agreed that A posed a grave and imminent risk to all women of a small stature “we know that but we don’t have preventative detention in this country”.

The whole basis of inherent jurisdiction was dependent upon the lack of capacity, “we do it every day in wardship, we detain adults on the basis that they lack capacity and it will be so shown in due course, but I have never seen it where everybody is clear that the respondent has capacity and they can’t be taken in under the Mental Health Act, it simply doesn’t exist. There is no statutory code in place, inherent jurisdiction has to attach to something in my view. I am the wardship judge, I have an inherent jurisdiction that runs alongside my wardship jurisdiction but I don’t have it in the ether.”

The judge said that she could not imagine the trauma that A’s mother was experiencing, the medical experts were unanimous that A constituted a serious and immediate risk to her mother. The underlying proceedings were being withdrawn and there was no legal basis not to lift the interlocutory order.

Counsel for the mother submitted that there was no therapeutic plan whatsoever from the HSE to provide any level of service, and suggested that the interlocutory order be continued for another 48 hours in order that a proper risk assessment be carried out, and in order for the HSE to inform the parties as to a therapeutic plan for the young person. A had stated that she might participate in treatment for childhood trauma.

Senior counsel for the guardian ad litem (GAL) told the court that he did not know of a case where a person had been detained unless there was a lack of capacity, so the CFA were in effect being ordered to detain someone they did not wish to detain for another period of time. It would be an enormous step for the court to take and would require a radical redrawing of the law.

The barrister for the HSE told the court that counsel for the mother was essentially referring to a “stay”, such as on Article 40, however it had only ever been invoked in relation to a person who lacked capacity with a view to re-detain and there was currently no such view. There was overwhelming evidence that A had capacity and that had significant ramifications from a legal point of view and from a treatment point of view.

The only medium secure psychiatric facility was the Central Mental Hospital, the Oireachtas had legally deemed three ways of admittance, all tied to psychiatric illness. The difference in this case was “there is no psychiatric illness under the Mental Health Act, there is no role for psychiatry in the rehabilitation of the respondent, that is the significant problem.”

The judge asked if it was correct to say that someone with very serious psychiatric disorders did not call for treatment.

“Ok, there is no call for in-patient psychiatric treatment,” replied the barrister for the HSE.

“That’s different,” remarked the judge.

“The consequence of an overwhelming view that the respondent has capacity has very significant ramifications on an in-treatment basis, it is not an option in this country… [counsel for the mother wrote] they are seeking admission to an independent medium secure psychiatric hospital.”

The judge told the parties that one of the psychiatrists, Z, had found that A would benefit from treatment in a medium secure psychiatric hospital “but if she has capacity and declines admissions to such a unit that is the beginning and end of it, I’m afraid.”

Counsel for the respondent, A, told the court that he had no instructions to agree to any basis for extending the interlocutory orders for a further 48 hours.

Counsel for the CFA told the court that it was his client’s position that the order be discharged that day and they were not consenting to a further detention in the special care unit, which was designed for children and where A had been detained since reaching her majority. The placement operated strictly in compliance with HIQA and it had been made clear to the social work department that they would not tolerate another extension.

The potential downsides of expanding the Court’s inherent jurisdiction was effectively preventative detention and there were the very profound issues of Constitutional rights to be considered, furthermore there was no medium secure setting open to the respondent in the State as she had no psychiatric illness under the Mental Health Act 2001 in order to gain admission into the Central Mental Hospital.

The court rose for lunch and when the case resumed counsel for the respondent told the court that his instructions had changed since the morning session. A had expressed concerns as to the adequacy of the proposed onward placement and did not wish to go there, she had expressed this “with some force”.

A both wanted to leave her special care placement and did not wish to go to her onward placement. Counsel for the respondent wished to gain further clarification from his client and sought a very short adjournment. He believed the reality of his instructions included the interlocutory orders remaining in places during the adjournment. A was now seeking further treatment and help, but not in the proposed unit. The court remarked that this appeared inconsistent.

Counsel for the CFA informed the court that the social worker had been getting emails and calls since lunch, the respondent was expressing distress at leaving the special care unit and had spoken of suicidal ideation. A had been referred to mental health services and local health services and therefore the CFA would prefer that the detention order be extended until the following morning as to discharge it then would be counterproductive.

The respondent was already the subject to strict bail conditions, there was now the question if bail should be continued as the guards had been called to the special care unit due to a recent coughing incident. There would be an investigation as to whether criminal proceedings should be brought. The care staff could make a complaint if needed about an alleged criminal offence and An Garda Siochana may need to interview the CFA regarding the incident.

With regards to the disclosure of psychiatric reports for a separate investigation by An Garda Siochana, senior counsel for the GAL submitted that even if there was a confidential relationship between the psychiatrist and A, if there was a risk to life or serious injury it was paramount. An Garda Siochana had sought to interview the GAL that morning, “she was walking in the gate of the Garda station when we managed to make contact with her but on foot of the request to the court she told the Gardai she can’t meet them… my client is a GAL, an officer of the court, acting as an agent of the court in the context of protecting, she will do what the court indicates. We will pass that on tomorrow and to the Gardai if the court is indicating she should not speak to the Gardai.”

The judge replied that in the normal course of events, if an Garda Siochana wished to investigate criminal events, they had the right to do so and it would be very difficult to say that all information should be withheld concerning matters which may impact upon the risk to the mother and other women as well.

The matter was put back until the following morning and when it came into court counsel for the CFA told the court that he had clear instructions to apply for a detention discharge on the basis that the placement was fully ready to be activated. The CFA would do their best to persuade A to attend.

With regards to the disclosure of information issue, the CFA were asking the court to approve the disclosure which was in the draft of the aftercare report, what was being disclosed did not include admissions and there was no medical history. The identity of some of the psychiatrists and some of the information in relation to the threat issue was included but it was the bare minimum of information. The respondent was not consenting.

Counsel for the respondent told the court that A had recognised last year that that she had needs due to past traumas and required help, and that in order to obtain that help she had consented to continuing to live in the special care unit past her age of majority, a place that she never wanted to be in the first place. A had been a resident in that unit for almost two years now and had cooperated with every assessment in the context of a wardship that she opposed, when she could have insisted on her right to leave when she turned 18.

Her mood was currently low and A was concerned that if she was placed in an open setting she would harm herself or others, “she now recognises that her desire to harms others can involve affecting her own welfare in a very significant way and inevitably be incarcerated for a very long period, she does wish to address these things, albeit for selfish reasons. What had been something in the future became a very imminent and stark reality, in the course of yesterday she began to engage with that reality.”

The judge commented that “it is now her belief that she needs medical treatment in medium secure care but she doesn’t have the medical disorder that will allow her to enter the Central Mental Hospital, her current aspirations won’t allow that to be met.”

Counsel for the respondent said that the depressing reality was that if she did go to the placement and that failed, it may be a very different arm of the State that dealt with her, perhaps in a very long-term way that would not meet the aspirations in the reports from the psychiatrists.

The court rose briefly so counsel for the CFA could take instructions. When the case resumed counsel told the court that he had been instructed to consent to an extension of one week of A’s placement in the special care unit, due to the immediate release of A into the community if she declined to go to her new placement. The case was adjourned for one week with an update to be provided to the court within three days.

When the case returned for the update, the court was told that the proposed placement, which A was still refusing to move to, was the only suitable and appropriate available aftercare option for A. Her social workers had approached 36 agencies with a view to finding a suitable onward placement.

The proposed placement was bespoke, a house had been bought, staff had been trained, the placement was already being paid for and it was effectively read to go. The matter of disclosure still needed to be addressed. Counsel for the CFA had instructions to seek permissions to furnish a memo of a contemporary note taken by the GAL which involved a frank discussion between her and the respondent.

A had referred to her intention to be released and she provided a fairly sophisticated and chilling description of her plans, how she would enter buildings, what she would do, the identification of premises, a graphic description of her intentions towards her mother. This showed the current mental state of the respondent which was that she remained intent on causing serious harm to her mother and other small females. The CFA wished to release this information in order for An Garda Siochana to take steps to prevent this happening to the mother.

The information had arisen in what would traditionally be a confidential setting and unprompted, there were direct quotes from A and the CFA considered they had an ethical obligation to bring the matter to An Garda Siochana. The medical qualification was that of a serious threat, intention or death to a third party. “This is at the very grave level of threat, this is a matter that is taken very seriously, that’s the position regarding disclosure,” counsel for the CFA concluded.

Counsel for the respondent was against the disclosure of information to an Garda Siochana.

Counsel for the respondent noted that the orders were only in place for another three days and remarked that the HSE had not stepped forward with any form of therapeutic care. The court however stated that she was only sitting with regard to the disclosure issue and would not re-engage with the whole proceedings and the suitability of the placement.

She told counsel for the respondent that if he was indicating he was coming in on Monday [in three days] to seek an adjournment then he would want to have something extraordinary to say. “Your client has said she has capacity and could not be detained under any circumstances. Now at the point of lifting orders she potentially wants to go into a secure facility, she wants it every which way.

“What’s abundantly clear is what is going to happen is that a highly traumatised and vulnerable 18-year-old is going to be released onto the street, with significant risks to herself and other women.”

The court pointed out there was no expert evidence to say that the bespoke placement did not meet A’s needs. This was A’s opinion and she was choosing not to go, she had gone in for 10 minutes and set her heart against it. The judge said that she understood that A was very troubled but her decisions had taken her to this point, “I am very fearful of what will happen to her and other women if the detention orders are lifted this morning.”

“Argument could be made the consequent wardship is sufficiently broad,” said counsel for the respondent. The court stated it would not embark upon a hearing regarding the court’s jurisdiction. “You objected to coming into the wardship jurisdiction, if she wishes your client can start any other proceedings, but she has eschewed the court’s jurisdiction.”

“But what she has eschewed was the findings of a certain definition of legal capacity,” replied counsel for the respondent,”

“You want me to exercise wardship jurisdiction when you have objected to being taken into wardship and every medical report says you have capacity,” asked the judge.

Counsel for the respondent replied that there was authority that the proposal of the wardship jurisdiction was not limited to capacity because the test for capacity is not the end of the wardship jurisdiction.

The judge asked at whose request, and in what proceedings, was she to determine what capacity meant under the 1961 Act. “The law is the law, there has to be a legal basis for doing what counsel suggests, quite frankly, what you have proposed just now I find to be quite extraordinary as a legal concept having regard to where we are,” said the judge. He had no proceedings to give him the locus standi with regards to the arguments made, proceedings had been withdrawn and the court could not interfere in any other way.

Counsel for the respondent told the court that he proposed circulating submissions that argued the test for capacity used in wardship did not speak to the full test. The judge informed him that she was not in a position to deal with those submissions but would probably give a ruling as to whether they should be entertained at all. It was the court’s view that in light of the fact proceedings had been withdrawn the respondent could not seek to ventilate those issues.

With regards to the disclosure issue, counsel for the GAL told the court that the GAL needed clarity as to what she could say to An Gardai Siochana as they wanted to interview her urgently. He noted that everybody was obliged to assist the authorities unless confidentiality “overrides that general obligation”. As the GAL was an officer of the court, this had to be brought to the court’s attention and clarity was needed from the court as to whether she could meet with an Garda Siochana or not.

The judge remarked that it would be better to wait until the current proceedings had been brought to an end, if they did so on Monday then the GAL would no longer be an officer of the court.

Counsel for the CFA said that while counsel for the respondent was opposing disclosure to An Garda Siochana, the latter did not know what was in the records, the CFA did however and considered it appropriate and necessary to disclose. “There is no principal of law that exists that in a civil detention scenario a person is immune to prosecution. Children in secure care are subject to criminal proceedings and the two operate together, the right to a fair trial, those rights are not altered in any way by the court making an order, the trial judge will address the respondent, any trial that may happen would be fair.” He asked that the memo be released so if the respondent were to be discharged that An Garda Siochana would have knowledge of the contents.

The judge said that it was an application to disclose two documents, some of the risk elements were described in summary in the event of the respondent no longer being detained and in the event of the detention orders being discharged. Some of the information in the first document was already in the public domain but it did include a summary of the professional expert opinion of four consultant psychiatrists which added weight to the risk identified therein. The second document arose out of a consultation with the GAL in the course of which A discussed with her feelings about what was currently happening to her with regards to her future placement and her detention orders being lifted.

She once again had indicated that she believed if released she would respond in a way which would drive her towards inflicting serious harm on her mother or perhaps some other vulnerable women. That was her contemporary ideation, not referred to in earlier reports referred to. There was a significant risk to her mother and other women and the detail given showed she had actually considered how she might carry out the crimes.

The court had evidence that there was an imminent and real risk to the life of the mother and other women and therefore she must direct the disclosure of the summary and aftercare document. She did not believe that any confidentiality attached to either document, and confidentiality would have to give way to the paramount consideration of the protection of human life. The court was in no doubt whatsoever if there was any balancing exercise to be carried out it had to be in favour of the protection of human life.

An Garda Siochana did not know the contemporary thinking of the person and they should not have to get that from the media. The court did not think the respondent could be prejudiced from criminal proceedings arising out of the threats as the trial judge would ensure the rights of the respondent would be vindicated as to what would be admitted. The court made the order for disclosure.

When the case returned on Monday with regards to the withdrawal of the petition for wardship, the CFA was still instructed to withdraw the petition and seek to have the interlocutory orders discharged. There had been communication with An Garda Siochana on foot of the disclosure and they had been appraised of the information surrounding that.

Legal submissions had been made the previous week suggesting the jurisdiction of wardship was broader than commonly understood to encompass a broader person of unsound mind rather than only someone who lacks the capacity to make decisions about their welfare.

There was no motion before the court for any relief. Counsel for the CFA told the court that the difficulties for all the parties in the case were acknowledged by the Agency. Legal submissions had been made last week and responsibility had not been taken in that regard by way of proper procedure but an attempt had been made to ask the court of its own motion to take steps. This was a case that had been coming to an end for weeks and the parties had known so. Now there was a troubled young person, who was an adult with capacity, being detained in a children’s centre.

If A’s placement in the unit was not vacated than her continued detention there would deprive vulnerable children of a placement who had been deemed in need of it. This would put the CFA in breach of its statutory duty towards those children. For now, HIQA was permitting the use of the building to continue that was about to expire with no extension of regulations, if A continued to be placed there the Agency would be committing a criminal offence under the Health Act of 2004. Therefore the Agency was asking for the orders to be vacated that day.

Counsel for the respondent said that there were novel aspects to this case, on Friday they had indicated they proposed to argue that in fact the wardship jurisdiction was wider than had been commonly understood and in a broader sense than in the past. He told the court that the argument had been made before in similar circumstances.

The President said that she had read the submissions and was familiar with the case law and there was nothing novel in it. The case law being cited re AM could not be further from this case, she said that AM clearly qualified under the Mental Health Act and he was going to be brought into wardship on capacity, he was of unsound mind.

Counsel for the respondent argued that if a person who posed a threat to others could be deemed of unsound mind then they would come into the wardship jurisdiction.

Counsel for the mother told the court that the mother was prepared to bring a motion seeking an enquiry, whereby the court might consider exercising its power under section 11 of the 1871 Lunacy Act to send out a medical visitor.

Then the court would be asked to run a motion based on the fact that the person was of unsound mind due to a personality disorder and its potential consequences. Counsel for the respondent submitted that the novel aspect was conflating unsound mind due to a personality disorder rather than the capacity test, where the proposed ward cannot manage their affairs.

Counsel for the mother submitted that a personality disorder can qualify as unsoundness of mind and the respondent herself was stating that she was incapable of managing her affairs because she could not restrain her impulses. An up-to-date inquiry was now needed, “expert evidence is that she is developmentally immature, even though she has turned 18, there is a window of opportunity for therapy in a secure setting to work. From my submission there must be a wardship inquiry as to whether the facts of this case now fall within the legal definition of wardship.”

The risk was real if A were to be placed in a community placement and counsel submitted there was enough before the court for the court to entertain an application without formalities. Counsel for the mother told the court that he was bringing a motion before the court, issuing new proceedings within the current ones.

The judge stated that “people have to make a claim, you have to set out in law what the claim is, plead it, put it before the court, find your legitimus contradictor and set it out before the court, now can you force [the CFA] into being your legitimate contradictor, who is your respondent?”

Counsel for the mother posited that wardship jurisdiction was not the normal form of litigation where a person sought reliefs for themselves.

Counsel for the GAL informed the judge that she had been speaking with A that morning and her up to date wishes were that she wished to stay in the special care unit. In the GAL’s opinion she should be in a medium secure unit but such a unit was only in the UK. The respondent would have to come into the court’s jurisdiction before she would qualify for a placement in the UK unit.

The judge remarked that part of the difficulty of the case was the shifting sands of the respondent’s instructions and no one knew whether she would actually agree to go to the medium secure unit in the UK if such a placement were to be found. Counsel for the GAL responded that everybody seemed to accept that A would have to be detained there rather than residing as a voluntary patient.

The issue for the judge was that inherent jurisdiction had to attach to wardship, and the court could only make a finding to take A into wardship if she lacked capacity.

“I am being asked to exercise an inherent jurisdiction based on the belief that she will be suitable to be taken into wardship,” said the judge.

“The best interests of the ward come into play as part of the test,” replied counsel for the GAL, “we might flounder in a procedural morass.” In effect, counsel for the mother was asking for a medical visitor to be sent out under section 11, if the court sent out a medical visitor that would be a judicial act, it was the start of the proceedings. Then the respondent for the mother could set out a motion.

The judge said that normally a section 11 came into the office explaining that a person was found wandering on the street, something was presented in support of a section 11 application for an inquiry. She asked exactly what was being proposed which would provide the various mechanisms and evidential materials to allow orders to be made.

Counsel for the GAL replied that a “personality disorder which as such deprives her of her soundness of mind, that is what is being said, that is different to a petition, it is a different case, if you have a different case you need to have it in different proceedings.”

The court then rose to read the submissions from counsel for the mother.

Counsel for the GAL summed up that what the medical visitor was being asked to do was find out “is the respondent suffering from a personality disorder and what effect it has on the quality of reasoning being exercised properly.”

The judge addressed the barrister for the HSE, she said that the situation could not be more grave, there was nothing in the medical reports that would give her any comfort whatsoever that if A was not taken into a secure environment she would potentially be a grave risk to her mother and to other women. And unless A was brought into the wardship jurisdiction that type of facility was not afforded to her. She asked what would happen if she made an interim order, affecting A’s detention, directed to the HSE.

The barrister for the HSE said that the basis for admission into hospital was whether or not the respondent had the capacity to make her own decisions. If a person lacked capacity then that person is entitled to be admitted into hospital. However, two professors had said A had capacity, that was the psychiatric evidence and A had decided she was not going to be treated. “She has a fixed personality disorder, so everybody is asking the HSE to detain someone, not to treat them, in a hospital where a person who lacks capacity can be treated.

“Now she is saying she does have capacity and she does want to be treated, they are saying forget about capacity, she has a personality disorder and seeks to be treated… the medical evidence was she should be in a medium secure hospital if she lacks capacity, so the application they are making is actually flawed.”

The barrister submitted that the court was being asked to make a petition based on evidence that had changed and to take a person into wardship in circumstances where there was no clear pathway to detain that person in any institution. The respondent did not have a mental disorder under section 8.1 of the Mental Health Act, and a person with a personality disorder was not suitable for admission for treatment under the Mental Health Act 2001, the Oireachtas was pointed in a very particular way on that issue.

The barrister also pointed out that the psychiatrist retained by the respondent had asked A if she could stop herself and she had replied: “I can stop myself, I just choose not to.” He added that “the HSE will not be in a position to offer her a place in the Central Mental Hospital, everyone is assuming that a place will be offered in the UK. Because it is established she has capacity she will not be accepted into a hospital environment of people who have no capacity.”

Counsel for the CFA submitted that three psychiatrists had found A to have capacity, the respondent chose to do what she does, she was capable of forming criminal intent, the only if was treatability. “Personality disorder is considered treatable under the UK Mental Health Act, but [the psychiatrist] doesn’t support the view that the personality disorder the respondent has operates to impair capacity, ‘on assessment now I cannot find evidence of impaired function of mental capacities’, he [the psychiatrist] is not saying it is borderline so that leads us to preventative detention. It is not the function of the court to carve out a preventative detention unless the person is a threat to themselves.

“The court is being asked by way of a mandatory injunction to detain a person. The court must ask what is my jurisdiction to do that, wardship allows substituted decision making, the court needs to be able to draw on some other legal theory for this that [in relation to] a citizen of capacity a public authority can be compelled to detain such a person. It is hard to identify what that authority should be, [the special care unit] is designated by the Oireachtas for children and the HIQA registration will run out in breach of our regulation requirements and can constitute a criminal offence and lead to it being shut down and there are three children on the list for a special care placement.

“My client, the CFA, has a mandatory obligation to find accommodation for these three children, this was intended to be a short-term detention. As the court noted earlier, the reality is that no one has identified accommodation for the respondent.”

Counsel for the CFA pointed out that if the detention was extended and there were further rounds of assessment with the psychiatrists, then the reality for this young person was to stay in the special care unit for months and that was unacceptable. She presented a risk to herself, to the staff and other children could not access it.

The judge told the parties that she would give a short ruling in the morning.

The following morning the judge discharged the interlocutory orders and refused to order a section 11 enquiry but stated that was not to say that the respondent could not make an application for such an inquiry.

The judge said the respondent mother sought to ask the court to impose a detention order, however A did not have a mental health disorder that was the requirement for admission to the Central Mental Hospital, the court had no inherent jurisdiction and there was no evidence the respondent lacked capacity and needed to be held under the Mental Health Act 2001, therefore inherent jurisdiction could not be used. The case AM could not be relied upon as case law, the facts of that case were a far cry from this one.

Earlier this year [the psychiatrist] had reported that A could control her actions but had set her mind against using that control, saying: “I can stop myself, I just choose not to.” A wished to act out acts of violence and had also stated that she wanted therapy regarding childhood trauma.

The court said that the respondent’s mother now found herself in an unimaginable situation and every reasonable effort must be made to ensure that A would take up the proposed bespoke placement. The court could not for procedural or legal reasons make a new inquiry, or short-term interlocutory orders otherwise without the consent of all parties. “Hard cases make bad law. Judges do not make the law, they apply the law, regardless where the risks might lie, I have no right or entitlement to detain the respondent to protect those she is a risk to.”

The CFA had made extensive efforts and approached 36 service providers, and a bespoke placement was now available. While the respondent was saying that it was not suitable to meet her needs the court had no evidence to say that is not the case. “All reference made to the respondent’s need to be detained in a secure facility were made in the context of what would meet her needs if she was in unsound mind and that is not the present state of affairs.”

Counsel for the respondent requested a stay in order for his solicitor to meet the respondent and inform her of the outcome. The court acceded to the application for a short stay to balance the rights of the parties and in circumstances where it gave some small consolation to A’s mother to know her daughter was safe for 48 hours.

Counsel for the mother informed the court that his client wanted to say that she was most grateful to the court and for what the CFA had done for her daughter.

Concluding the hearing, the court remarked: “This is the most disturbing case I’ve had to decide and I’m doing this job since 2007 and that says something”.