Wardship orders were renewed by the High Court for a young woman. The young woman had been in care under a full care order and was detained in special care for over three years, with a break of a few weeks between detention orders and two step-down placements which both broke down. She has been made a Ward of Court shortly after she turned 18 in 2020. In the intervening period there had been difficulties with her placement, she had recently been in an accident resulting in serious injury and was in hospital. Her discharge from hospital was being delayed by the lack of a suitable onward placement.
The 2020 wardship application
During the wardship application in 2020 the barrister for the Child and Family Agency (CFA) told the court that although the young woman was “no longer a child”, it remained the CFA’s application for her to be made a Ward of Court and the CFA remained the moving party in the application. The barrister said that the HSE was a notice party and “may move in” but as the situation stood the CFA remained involved in the aftercare of the young woman until she reached the age of 21 and the CFA had a statutory role and responsibility in respect of her aftercare.
The barrister for the GAL asked the court to make no order in respect of wardship until all the parties had been served with the medical visitor’s report. The CFA barrister told the court that it was an unusual situation as the young woman fell between the child care and mental health regimes. As she had turned 18 she no longer fell within the child care regime but could not be dealt with under the mental health regime as no HSE assessment had taken place. “At present there is no legal framework aside from wardship to deal with her situation,” noted the barrister. The judge directed an assessment be carried out by the HSE and that she would list the wardship hearing for a date in the future to allow the assessments take place. The judge also directed that the young woman be served with the wardship inquiry in order to provide her views in respect of it.
“She is the longest child in special care in Ireland from […], with two interruptions for step down placements, both of which broke down,” noted the barrister for the GAL. She said that her level of risk at the time was “enormous” and said that it was not just in respect of drug taking but also “sexual exploitation, absconsion, self-harm and harm for others and it got worse as time went on”. The barrister said that the risk was not just how she was presenting now but her trajectory.
The judge admitted the young woman [A] into wardship. She described A as witnessing her mother’s attempted suicide at a young age, an incident that did not leave her unscarred. Her mother had been neglectful of her care and A had lived on a part-time basis with her father and in foster care and then had moved into residential care. She had taken overdoses of over-the-counter medication, engaged in self-harm and assaulted care staff and peers. A had been taken into care in 2016 and after a short time she was placed into special care. She was now 18 and a risk to herself and others. The CFA pursued wardship made by a notice of motion in mid-2020 after a number of special care applications made by the CFA arising out of “a litany of chaotic, dangerous and risk-taking behaviours on” her part.
The judge noted that she was not entitled to take A into wardship if she was able to understand and able to weigh the risks of her behaviour, even if she had made hundreds. “I can only take her into wardship if I am satisfied that she takes those risks and makes bad decisions in an uninformed way. However, Psychiatrist 1 was of the opinion that A did not have the capacity to manage her affairs and had little or no insight into danger. She had found A to have severe disruptive and an explanatory language disorder that caused her to struggle to hear, process and remember and understand what was said to her.
“Her cognitive function on assessment on the Weschsler Intelligence Scale for Children showed that she was in the borderline range of all tests. This meant that A could not retain small amounts of information and this lack of ability would impede her from learning. Her working memory did not allow her to weigh up decisions, however her cognitive ability could be improved within a programme using simple language with simple messages. A secure environment within wardship would endeavour to develop her cognitive abilities.”
The judge said that she was satisfied that A did not go through any decision-making process prior to making decisions prejudicial to her welfare and it was this that distinguished her from her associates who were taking risk but knowing they were doing so. “I am satisfied that those risks have no meaning to [A] and are exacerbated by her substance and alcohol abuse.”
Having considered all of the evidence under section 15 of the Lunacy Regulation (Ireland) Act 1871, the court was fully satisfied that A did not understand the decisions she was making and weighing up the risks. The judge said that A had a difficulty with verbal memory, comprehension and language, a significant intellectual disability, as a result of which she could not manage her affairs or make informed decisions. “She will not gain capacity at a later stage. Much of her behaviour over several years shows she craves containment, and the only time [A] appears to have made any real progress was when she was in special care and so for all of the above reasons I will make her a ward of court.”
One month later A moved into her new placement which was a new facility with a special care element to it.
The new President of the High Court received an updated psychiatric report in June 2022 which advised that the young woman was still of unsound mind and incapable of managing her affairs. A Significant Event Notification (SEN) had been received from her care provider that A had engaged in the serious physical assault of staff members during a trip outside of her placement, including while a staff member was driving.
The judge had a concern that A’s placement might pull out because of this assault. The court heard from the young woman’s solicitor that A’s weight was in a precarious situation, she had been refusing to be weighed since April and her eating disorder needed to be carefully monitored, she had been experiencing some hallucinations which might have been as a result of not eating. No onward placement had as yet been identified for A.
The judge remarked that her current placement was in jeopardy due to the assaults on staff members “and we have nowhere else to offer her, the [placement] may take a view that they can keep her but only with restrictions.” She had restricted access to her phone and had asked her solicitor to advocate on her behalf regarding that.
A also wished to see the judge. “I would be delighted to see her,” replied the judge, “I do think she has so much potential but she may have to remain somehow restricted in relation to her phone, the most important thing is that her placement isn’t put at risk”.
Wardship orders were renewed and the case returned a month later. In the intervening period A had been in an accident while taking drugs and suffered serious injuries, she was in hospital waiting to be assessed by a rehabilitation hospital. The waiting list to gain admission to the rehabilitation hospital was 8 to 10 weeks and her solicitor was recommending that a multidisciplinary meeting take place in the first instance in relation to her diagnosis and treatment.
“It’s hard to express the tragedy that has occurred in the last week but [her solicitor] has in the statement,” said the barrister for the general solicitor, as A’s Committee. The HSE solicitor would take instructions and update the court regarding what orders were required from the treating doctor regarding her treatment. The case was listed one week later for further review. The barrister for the CFA told the court that they may apply for further orders to support A’s time in hospital on the next court date.
The following week the court heard that A had absconded from the hospital in a wheelchair and that her boyfriend provided her with drugs in hospital but she had handed them over. She had bought a phone after going to her bank and withdrawing money. Further to the draft order of the last court date, restricting her access to her phone and visitor access, further orders were sought by the CFA restraining A from dealing with her bank account.
The CFA and HSE were engaging in relation to the issue of an onward placement from hospital, as a placement upon discharge was a precondition for A’s admission into the rehabilitation hospital. Very significant difficulties were being encountered by the CFA in identifying a suitable placement now her needs had changed significantly. The barrister for the general solicitor noted that all options should be explored as a matter of urgency. Her consultant was recommending a social care worker being with A all of the time and that the psychologist [from her residential unit] continue to work with her. A’s Committee fully supported those measures. The hospital was in agreement that those measures were required in managing her very difficult behaviour, the Court heard. A was receiving ongoing multidisciplinary care in hospital, including psychiatric care and dietetics.
The CFA sought an order restricting access to the ward in order to give the hospital staff lawful authority to restrict access visits. The order regarding the phone was in permissive terms, in that it permitted no access to her phone, the barrister said. “The social worker wanted to flag that she will experience isolation as a result of the orders today, it’s draconian a 20-year-old does not to have access to the internet, her phone and her friends and the wheelchair has been taken, she is only able to get out of bed for physio purposes. If there are difficulties with her coping in those circumstances, it will then be reviewed.” The President of the High Court noted that as the orders were in permissive terms there “can be scope for relaxing them”.
The barrister for the general solicitor noted that although A would not be supportive of the measure, a careful balance had to be drawn to support her rights and her safety. In renewing the order, the judge stated that it was “extremely difficult for the hospital to manage [A] with all of her different complex needs, and also difficult for the hospital to restrict [A]. For understandable reasons, it can’t be easy for them and [she] is in an appallingly difficult position herself, one grain of hope that [the doctor] has said that if she does the rehabilitation she could walk indoors with support.” The judge made the orders sought which were supported by the HSE and by the Committee.
Six weeks later
Six weeks later, when the matter was listed for review and for an update, the issue of onward care from the rehabilitation hospital was still current. The court heard that it had agreed that the requirement for an onward placement could be waived but there would need to be a lot of work identifying a placement more generally. An admission date was being waited upon. An interagency meeting between the CFA and HSE would take place in a week’s time, during which the continuing restrictions and orders would be discussed as well as the onward placement. There had been hope that a particular service provider could provide an onward housing placement to the young woman after her rehabilitation, but the CFA had since learned they were unable to offer her a place.
In relation to the phone and visitor restrictions, the court heard that A had stated that she would refuse to go to the rehabilitation hospital if the restrictions were not lifted. “Could the restrictions be lifted for a certain period of time?” asked the judge, “I fully understand why they were put in place in the first place,” and he asked the barrister for the HSE to find out how often the restrictions were being reviewed.
Later that morning, in the courtroom, the judge spoke via video link with the young woman in hospital. She explained that she was frustrated on finding out that the service provider was unable to provide her with the onward placement. The judge explained to A that the provider was concerned they did not have enough resources “to give you properly what you need, they’re not ruling it out for the future.” He said that he knew that she had been working really hard on her recovery. A replied that the housing service provider were going by her needs now and that she was “walking with physio but it’s so much better than a few weeks ago. I just think it was a bit early for the assessment, I have to go to [rehabilitation] first, they’re only going by my needs now.”
“I hear exactly what you’re saying,” acknowledged the judge. “Everybody agrees that you need to go to [rehabilitation] now to get you in the best shape physically for afterwards, what they’ve told me is that everyone is working really hard to get you a place that’s proper and appropriate for when you get out, of course it’s frustrating for you, you want to know exactly where you want to be.”
“Yes, I don’t want to stay in care, I want to get my own place.”
“You’re doing really well, you’re completely on top of what’s happening, I can see it,” he replied.
“It’s completely frustrating, I was working towards my phone, I did the six steps, six phases, I didn’t get my phone back, I just feel, I’m 20, I shouldn’t have to work towards my phone. Obviously they’re worried about me organising stuff but if I had my phone I wouldn’t mess it up,” responded A.
The judge explained to the young woman that the type of order he had made in relation to the phone was such that if the hospital staff felt that she could work with the phone safely and not use it to organise things, then they could review it. “The staff in the hospital are open to looking at those restrictions.” He noted that at the end of the week, the staff would be looking at “what, if any, restrictions should be in place for the use of your phone. Hopefully you’ll be able to show [them there is no need for] the super strict restrictions that are now in place. Your view is very important in this and you’ve said what your view is, you need to show people what you’re doing and that you are not going to misuse it. You can speak to me whenever you need to. If there’s anything you want to say to me,” the judge reassured her.
A reflected that she should probably stay under wardship for another few months because she was not “one hundred per cent”.
“I think you’re right, everybody has your best interests at heart, to make sure that you get the best treatment out there, they want you to come the best out of this,” he replied.
“I appreciate it,” she said.
“I think stick with the programme and hopefully there’ll be less strict restrictions. The most important thing for you is to get physically sorted out. It’s really nice to meet you, difficult talking over the computer but it was great to meet you and I hope that everything works out for you. I’ll talk to you again,” reassured the judge. The young woman said goodbye and left the call.
The judge summarised the review, stating that he had been updated on the position of the possible placement by the housing service provider, “they do not feel they are in a position as things stand, they say at the end they would be open to exploring the possibility. An enormous amount of work has been done by all the parties to get to this stage, the best interests of [the young woman] will be met in the [rehabilitation hospital], and whilst I haven’t been given a date for her admission into that hospital, I want to stress that she should receive that placement as soon as possible.”
“I have really no alternative but to continue with the orders in place. She is an extremely articulate young woman. I was extremely impressed with her and I know that she’s very concerned both about the position of an onward placement and I know that’s a matter to be addressed by the Agency. And she’s also very concerned about her restrictions on her device. The order to continue today is permissive in its terms and allows for a lightening of that if that’s the view of the physicians on the ground. Any decision made will be made in her best interests. She realises that it’s partly as a result of her own actions that it’s come about but she’s doing her best. In all the circumstances I feel that I’ve got no alternative but to continue the order, any restrictions to be lifted are within the order,” noted the judge.
Two weeks later A was transferred from hospital A to the rehabilitation hospital, hospital B. Three weeks on from the transfer the case came in for review. The court heard that A’s placement in the rehabilitation hospital was in jeopardy due to incidents of suspected and actual substance abuse. Initially the hospital had requested her discharge, however the CFA had provided additional support to the hospital from two social care workers and A had committed to no further substance abuse. The restrictive orders in relation to her phone, visitors and internet access continued.
In relation to her medical needs, the minutes of a recent hospital meeting had recorded that A would require ongoing medical support. The judge remarked that there had been some “reference to very positive steps, she has been walking with the aid of crutches for short distances.”
The barrister for the CFA told the court that the hospital had not yet furnished a report on A’s progress, the judge asked for evidence of her progress “as she was a Ward of Court” and he would like progress. He further noted the discharge date had given rise to a large amount of concern, instability and insecurity on the part of A.
The barrister for the HSE updated the court that an onward planning meeting had taken place. A HSE disability services provider had concluded that they would not be appropriate for her going forward. The judge noted that when A turned 21 the CFA’s [obligations would cease] “and the last thing I want to happen is the HSE says they have no further obligations, I don’t want to be told the agencies are still liaising and asking for it to be put back. [The first hospital that A had stayed in] had done more than its fair share of treating and containing her longer than it had committed to do so, and it’s far from desirable that she would return there. You might convey my views to your clients, it’s a very complex case, I’m aware it’s not easy, but I express the strong wish that detailed planning and efforts are made in order to secure a placement other than a hospital placement, this woman has really had an awful time,” he said to the barrister for the HSE.
The judge further noted that when A had been assessed prior to her transfer to the rehabilitation hospital the psychiatrist had “concluded she does have capacity”. The judge noted this ran contrary to other evidence he had seen, and that no application to take A out of wardship had come before him. However, he had been furnished with a report from a more recent psychiatric assessment. “I do have this report now and I will need to see evidence that reaches a different conclusion if that is the case as it clearly has significant consequences for the continued wardship,” he told the parties.
The barrister for the HSE, a notice party to the proceedings, noted that previously, during the contested wardship hearing in 2020, the then judge “did find she should be admitted to wardship, there were two other reports before the courts a couple of years ago, and there was a conflict on the evidence, she had a hearing over a couple of days on the matter, so in those circumstances I would like liberty to put in a replying affidavit within a week.”
The barrister for the Committee asked that the medical visitor be sent out to A, and the solicitor for A stated that an urgent assessment of need was required and asked the judge to use his jurisdiction to send out a medical visitor, “she remains in wardship, but in cases where a report comes to hand of this nature and where she has a particular view of her wardship status, I do think it would be appropriate to dispatch the medical visitor at this point,” said her solicitor.
“This matter has been before me on many occasions,” the judge said, and stated that the predicted discharge date was just before Christmas, the barrister for the Committee was urging the CFA to provide a detailed assessment and placement plan for her A. “As things stand, no onward placement has been identified for her, I am assured that extensive engagement is ongoing between the HSE and CFA, but steps taken so far have not yielded results.” The judge asked for “efforts to be redoubled to produce to the court as soon as possible a detailed placement plan of aftercare, a multi-disciplinary report, and a detailed assessment of her needs of what she requires in an onward placement.”
The judge noted that if A was discharged from the rehabilitation hospital “there will be no placement for her to attend, [the hospital she had been in] is not appropriate in the circumstances and does not address all of her very complex needs, since her move a number of very serious incidents have taken place which put her placement at risk, the hospital authorities were minded to discharge her, but her aftercare worker set out steps taken by him to secure her placement there and to persuade them not to discharge her prematurely.
“I would like to be updated by the [rehabilitation hospital], I need a detailed report as to how she’s getting on with her physical rehabilitation.” He referred to a recent psychiatric report provided by a consultant psychiatrist that found severe psychological issues and emotionally unstable personality disorder. “There may now be an issue on her capacity based on her report, as this issue was previously looked at for the wardship hearing by [a previous judge]. It is appropriate that I make the order to send out a medical visitor, [the same one that was previously with A], if at all possible, it would be appropriate that she would be the medical visitor…to carry out an assessment of her capacity.”
The judge made further orders detaining A under wardship, noting her poly substance abuse, anorexia nervosa and emerging unstable personality disorder. “There is now an issue regarding her capacity, which I will now address by appointing the medical visitor,” he concluded. “I have no alternative but to continue the orders for three weeks.”
He requested that an update from the meeting of the multi-disciplinary team be provided for the next court date and the update on the physical progress and also a report on her placement progress.” The President of the High Court also asked that consideration be given if at all possible for a later discharge date beyond Christmas, although he fully understood that the rehabilitation hospital might not be able to facilitate it.
“We’ve been at this stage a few times before with the [rehabilitation hospital] and they’ve been able to pull back from the immediate discharge, bearing in mind the alternatives are pretty dire,” said the judge. “If there’s anything I can do to assist that process, let me know. And if you can covey to the hospital that I’m appreciative of their generosity in reacting to very difficult situations that have arisen, but the consequence of an early discharge would be very serious, devastating in fact, the overall response is how thankful I am and all of us are in them looking after [this young woman] since she has been there.”
“The orders which are in place do have detention and other restrictive elements to them, I am satisfied on the evidence that they are in her best interests and are the least restrictive as are required by the circumstances,” stated the judge.
He noted that A was making a remarkable recover from her injuries through the stay in the rehabilitation hospital and that there were some very important steps in that process still to come, and urged “all concerned not to put at risk those achievable goals.” The judge also said that he knew efforts on the part of the HSE and CFA were continuing to try and identify an appropriate placement for her post-discharge from the rehabilitation hospital, and he noted that a return to the hospital she had been in would be disastrous.
He continued the wardship orders for a further three weeks and made an order under s.27 of the Act, precluding the publication of material that might lead to the identification of the ward.