Interim Care Order to permit psychiatric assessment in another jurisdiction – 2015vol1#24

A High Court judge granted an interim three week Care Order for the continued civil detention in another jurisdiction of a 17 year old [A] who would reach the age of majority within three days. The teenager, who was a vulnerable minor, needed a forensic psychiatric assessment by an adult psychiatrist to determine her capacity as an adult. The assessment could not be carried out until the age of majority and was due to commence the week following the hearing.

The court had heard on a previous occasion that this girl was the longest serving compulsorily-detained person ever in secure care.

Senior counsel for the mother told the court that while he did not have specific instructions, the mother was supportive of the placement continuing. An application was being made in the High Court of the other jurisdiction to look at the Irish High Court’s decision. Detailed consultations had already taken place with a QC and his junior in order to see whether such an order would be met with approval.

Senior counsel for the CFA told the court that the application was for an emergency order for three weeks, to ask for the inherent jurisdiction of this court to be replicated in the other jurisdiction. This would allow a comprehensive assessment to take place in respect of A’s capacity and whether or not she is a vulnerable adult. Determination had yet to be reached in respect of her capacity. Previously it had been determined by an Irish High Court judge that she lacked capacity on foot of the evidence before him at that time.

“She poses an extreme risk to her own health. Capacity is a forensic analysis, certain psychiatrists are qualified for this,” said the CFA senior counsel. There was an imminent risk to A’s life, which was one of the reasons the [original] orders were made. She had run out of a hospital onto the main road seeking to be knocked down.

She was in need of specialised care, therapeutic and welfare services. “No-where can provide that level of care in this jurisdiction. Unfortunately, that is the situation. She is at serious risk of causing harm to herself, there is a long litany of attempted self-harm,” he continued.

Orders were needed that reflected the original orders: permitting the HSE to provide any consents and to provide all data in relation to the care and protection of the minor; directing the care unit to take all steps to promote and protect her care; and that the HSE would appoint someone to act on a continuous basis on behalf of the minor. These orders, along with others, would form part of a mirror order in the Court of Protection in the other jurisdiction.

The girl would require on-going treatment for at least six months, the court heard. It was not a permanent order. The threshold was met in terms of these orders in the other jurisdiction. The CFA were cognisant of her rights under Art 2 and Art 5 of the EU Convention of Human Rights. There was sufficient evidence to query her capacity.

Senior counsel for the mother told the court that threshold went to capacity and not to vulnerability; at the moment [as a minor] she did not lack capacity but would have to be assessed by an adult psychiatrist. This was a novel application to detain her as an adult in the UK.

The CFA was happy that the application was within the compass of the court’s inherent jurisdiction, said its senior counsel, and it was not an application that would be made on a regular basis. This was a young girl who in three days’ time would be a vulnerable adult.

The judge thought it was a collaborative approach by all the parties and in the minor’s best interests.

Senior counsel for the guardian ad litem told the court that the guardian felt the evidence was such as to justify the court making the application. However the CFA was under a continuing duty to work towards her return to Ireland, she was an Irish citizen who wanted to return home to her parents. She had a constitutional right to return to Ireland and the detention in another country was being imposed on her against her wishes.

His solicitor had spoken with the teenager over lunch. She had said she did not want to feel that the State was washing its hands of her and therefore the Irish High Court order was of significant value to her. It would provide for regular review and monitoring as well as additional examinations by an independent psychiatrist. The order would provide the legal framework for that to occur.

Judge: “Her capacity is an issue, clearly, but is she assenting at this stage?”

Guardian ad litem senior counsel: “I cannot put it that far.”

Judge: “No, fine, but she understands, she sees the necessity of it and the advice of the guardian is she should remain there?”

Guardian ad litem senior counsel: “Her position of course is that she doesn’t want to remain there, the guardian has to decide what’s in her best interests. It’s been explained to her what’s in her best interests in the coming months. The doctor has spoken of a minimum of six months, we don’t want her thinking she’ll be back after six months if she hangs on in there until then, there has to be actual real progress.”

Judge: “It was indicated to me yesterday that a written judgement wasn’t required, an interim measure is sought. Having considered very carefully all of the submissions and evidence, it is quite clear to me that [A] does need to remain in [the other jurisdiction] for assessment in the context of what is proposed for assessment by an adult psychiatrist. The particular fact that brings me to that conclusion is the fact that there was an attempt to move her towards a return a couple of months ago and that did not work out.

“To my mind it illustrates on-going serious issues. Dr [Y]’s comment that he felt she had to settle down and if you like, engage with the system, I took from that in large measure, even though I understand and have read the description of her particular illness, he felt [A] could focus more on trying to get the inbuilt control in terms of any capacity she might have internally to correct the problems.

“It is important for [A] herself to be aware the court has engaged with her, spoken with her, heard two expert psychiatrists, two experts in the case, this court has a keen interest in her welfare, and has a keen interest in seeing her return to this jurisdiction as soon as possible. She can rest assured there will be intensive welfare reviews as often as is required. Any worry about being abandoned by this court she can set aside. It is important there is an examination of her as soon as she reaches 18 by an adult psychiatrist to ascertain any lack of capacity, given there is an issue there being identified.”

CFA senior counsel: “The only order we’re seeking is three weeks.”

The judge granted the orders sought for a three week period. The assessing psychiatrist would give evidence in three weeks regarding her condition and recommendations.

Judge: “This court is exercising in exceptional circumstances its inherent jurisdiction which should be exercised in very limited circumstances.”

The judge directed that submissions on behalf of the guardian ad litem should be included for the High Court in the other jurisdiction and mirror orders be sought.