A young woman (A) who had been made a Ward of Court in 2020 was released from wardship in early 2023, having been found by a number of psychiatrists who gave evidence to the High Court to have regained capacity.
In a previous hearing (reported in the last volume of our reports) she was described as having been the longest child in special care in Ireland before being taken into wardship, as she was in special care from September 2016 to May 2020, with two interruptions for step-down placements, both of which had broken down.
Her background included witnessing her mother’s attempted suicide when she was 10 years old. Her mother had been neglectful of her care and A had lived on a part time basis with her father and a foster carer 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. Sexual exploitation, absconsion, self-harm and harm from others were among the risks she experienced while in special care.
In 2020, an application was brought before the High Court wardship list by the Child and Family Agency (CFA) in respect of the young woman who had recently turned 18. A new special care application had been made in the High Court in the summer of 2019, and the court had heard that she had previously been in Special Care detention since September 2016 (with a break of a few weeks between detention orders) until the spring of 2019. She was also under a full care order.
In 2020, having considered all of the evidence under section 15 of the Lunacy Regulation (Ireland) Act 1871, the High Court President was fully satisfied that A did not understand the decisions she was making and weighing up the risks. She 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.”
In 2022 the wardship was renewed. 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 Nua Healthcare that A had engaged in the serious assault of staff members on a trip outside of her placement.
The Court heard from A’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 her not eating.
Wardship orders were renewed and the case returned a month later. In the intervening period A had been in an accident and suffered serious spinal injuries after taking drugs. She was in a hospital waiting to be assessed by the National Rehabilitation Hospital (NRH). The waiting list was 8 to 10 weeks and her solicitor was recommending a multidisciplinary meeting take place in the first instance in relation to her diagnosis and treatment.
Six weeks’ later, when the matter was listed for review and for an update, the issue of onward care in the NRH was still current. The court heard that the NRH had agreed that the requirement for an onward placement after treatment be waived but there would need to be a lot of work identifying a placement more generally.
The judge had an online conversation with the young woman about her needs and her progress, and remarked on how articulate she was. She had expressed a strong desire to get out of hospital and live independently.
The judge summarised the review, stating that he had been updated on the position of a possible placement by a housing service provider. Two weeks later A was transferred to the National Rehabilitation Hospital.
The judge noted that when A would turn 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.”
The judge further noted that when A had been assessed prior to her transfer to the NRH, from the other 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.
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 by NRH and also a report on her placement progress.”
“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 NRH, 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.”
He continued the wardship orders for a further three weeks and made an order under section 27 of the Act, precluding the publication of material that might lead to the identification of the Ward.
Case returns in 2023
When the case returned in early 2023 the court heard that prior to Christmas A had been transferred from the rehabilitation centre to the proposed hospital and had been there for the previous three weeks. The young woman was being supported in hospital by the external health care agency. The HSE and CFA were collaborating intensively to find a suitable placement and a residential placement would be reassessed for a possible wrap around service.
The report from the aftercare worker had informed the court that A was presenting in the hospital ward with the same problems of taking illicit substances, she had been visited by a relative in hospital who provided her with a phone, then subsequently been given the substances. There was also an alleged assault by a member of staff and A’s social worker was looking into the allegation.
In late 2022 Psychiatrist One had found A to have capacity, while Psychiatrist Two, on behalf of the CFA, had found A to lack capacity. It was agreed that an updated psychiatric report would be carried out by Psychiatrist Three.
There was a significant volume of psychiatric supports at this point and the CFA sought an order to share those reports in respect of any psychiatrist appointed to assess A.
The court heard from the solicitor for the CFA that the medical visitor had not yet attended the young woman and that the CFA remained the lead agency in the context of the interagency cooperation. However, she had instructions that the CFA were not in agreement with that, therefore the two agencies would be engaging on that issue in the first instance. The CFA were seeking a continuation of the current orders as well as an updated psychiatric report.
The High Court President asked about the short-term placement that was referenced in a report from the HSE, “she doesn’t need to be in the hospital for medical reasons, she is creating havoc, there are members of care staff who now can’t work with her because they have been racially abused by her.”
The barrister for the HSE, who was a notice party to the proceedings, told the court that an interagency meeting was being held the following week in relation to discharge planning and to support the young woman in a short interim placement in her own premises, with support staff and care arrangements. However, the report from the social worker had set out that multiple agencies had already been contacted and none of them was in a position to provide A with a support package.
The President remarked that a hospital bed was “being taken up at a time of national crisis of hospital beds, with no medical reason and no alternative placement for [the young woman]. The sooner she can be discharged and placed somewhere more appropriate the better.”
The barrister for the Committee told the court that the Committee was in agreement with the submissions made by the CFA and HSE and that the guardian ad litem (GAL) felt that the discharge planning was crucial. The barrister questioned whether the court could safely approve the discharge plan where self-directed care was being outlined, when the model of care being suggested recently was a full-time residential placement with restrictions built around it and that an out of state placement had also been considered.
The President replied that those points needed to be raised at the interagency discharge meeting and he requested a report back to him in that regard. He said that since the move to the hospital from the rehabilitation centre, there were “some positives but many negatives, the position is far from smooth, the staff in the hospital have to care for many patients, and yet there are providing an enormous amount of care to her, and appropriately so, I would like to pass on my thanks and recognition for what they’re doing.”
He noted that a private psychiatrist being funded by the CFA had been appointed to carry out an updated capacity assessment in the following weeks. Psychiatrist Two who had initially carried out the capacity assessment in 2022 and found A to lack capacity was not in a position to carry out an updated assessment, due to work pressures. The orders were renewed for two weeks, with an additional provision for the hospital to have the authority to carry out the appropriate searches to seek out illicit substances and remove them from the young woman.
Psychiatrist concludes young woman has capacity
When the case returned two weeks later, the court heard that the medical visitor had been seen A and had concluded that she had capacity. The barrister for the CFA told the court that the report of the social worker, sworn on affidavit, stated that the young woman was likely to make unwise decisions and put herself at risk.
The President questioned his continuing authority regarding wardship and said that he would “need some assistance as to what the parties say I can do now, what jurisdiction I may have” and what he could do relating to the issue of “the unwise decisions”, as according to the medical report, they did not affect capacity. “I could be asked to hold off until everybody has had a chance to absorb what was in the psychiatrist’s report,” he said.
The barrister for the CFA told the court that the psychiatrist previously sent out by the CFA was being asked for another report regarding capacity. She told the judge that she was not in a position to “push for continuation of the orders due to the reports saying she has capacity.”
The High Court President noted that the young woman was currently in an approved ward in an acute psychiatric ward on a voluntary basis “at the moment and all the medical evidence says she should be there, she could walk out, is there anything I can do to stop her walking out?” He had detected in different reports that A seemed to have a “determination to try and get better and obviously it is much better if she stays where she is for the four to six weeks.”
The barrister for the HSE said that it would be appropriate for A to remain under the wardship jurisdiction until the court determined that she has capacity and should be discharged, the court had not made a finding as yet and the CFA was looking for another report. A was being held in wardship under a court order. If she was found to have capacity in the updated assessment of the psychiatrist being sent out by the CFA, then a discharge hearing would follow.
The President decided to give the CFA the time to get the psychiatric report on capacity and then list the matter for a discharge hearing when the report became available. The court was advised that the assessment would be taking place within the coming weeks and the judge then noted that he was disposed to list a discharge hearing the next month.
The barrister for the Committee told the court that to ask for a listing for a discharge hearing was the appropriate approach to take. She noted that the difficulty was with the preponderance of evidence pointing to capacity. “In my opinion the court does have jurisdiction for continuation of the current orders, for the shortest possible period, given her orders effectively amount to detention. For a short period of time, it would be the most proportionate response.”
The hospital where A was placed was an approved centre in the grounds of a medical hospital for the purposes of the Mental Health Act.
Two weeks later
When the case returned two weeks later an updated report provided by the psychiatrist for the CFA concluded that the young woman was “not of unsound mind and incapable of managing her affairs.” The President remarked that he was grateful to the consultant for turning the report around so quickly. There was also a further report by the psychiatric consultant for the HSE, sworn on affidavit.
The solicitor for the HSE spoke to the report of the medical visitor, sent out by order of the President to carry out an enquiry regarding capacity. The court heard that the HSE was not in a position to apply for an extension of wardship as the medical visitor had found no evidence to contradict the finding that the young woman had capacity. Therefore, discharge was appropriate.
The barrister for the CFA said there was “no medical evidence to suggest other than that she has capacity at this stage”. She said that A was coming to the end of her detox programme and would be encouraged to stay voluntarily and engage with the programme until the end. The barrister for the CFA added that the young woman was attending a Narcotics Anonymous meeting voluntarily as well as regular physiotherapy sessions and that these were “positive steps in the right direction”.
The President stated that there was no basis upon which he could continue the wardship order, there were now five psychiatric reports. The barrister for the HSE, told the court that “the legal basis of your authority in wardship is the person is of unsound mind and lacks the capacity to manage their property or their affairs and there is no evidence before you.” The judge replied that A was “coming to the end of what it appears is quite a successful detoxification programme [and] it would be good if I had the power to enable an order that would [bring A] to the end of the programme.”
The barrister for the HSE said the HSE were looking at what services they had to support the young woman but that her housing was now the “county council’s responsibility, not the HSE’s, it is up to Tusla to push for that with the county council, there is a temporary short interim placement that could be made available to her [by the HSE], in circumstances where this is an exceptional situation and my clients are doing that on an exceptional basis.”
It was anticipated that A would be finished her detox programme in three more weeks, as she had completed three of the six weeks. The barrister for the HSE reiterated that her client saw the housing obligation as belonging to the relevant county council for A and that “Tusla should advocate” for her, however on an exceptional basis in the event that temporary accommodation was required, the HSE could provide an interim placement.
The barrister for the general solicitor, who had been appointed as A’s Committee, told the court that she was in agreement on behalf of the general solicitor that the court did not have jurisdiction to continue the orders of wardship. This was based on the medical evidence and on the evidence of the medical visitor as well, who was effectively saying that the young woman had regained capacity and could be remitted to the management of her affairs. The barrister also told the court that A was very thankful to the court.
The young woman had contacted her solicitor from the wardship hearing of 2020 and had asked her if she could leave the hospital if the order was discharged that day. The solicitor had said that she understood that A was there for medical reasons and should consult with her doctors. The young woman had been a bit annoyed and said that “she intended to walk again without the wheelchair, that she will be able to manage, she won’t go back on drugs, she has made a fresh start and the most important thing is that she will have the freedom to do things without anyone telling her what she should do.”
The young woman had “sounded delighted that she will be discharged today,” said the barrister. Effectively the Mental Health Act would be available to her if she was not a Ward of Court. A housing NGO would provide some services to the young woman.
“It’s an odd day really” said the President, noting that a former High Court President had had a number of hearings involving A and that she had admitted her into wardship in late 2020 under convincing evidence that the young woman lacked capacity. Now, in early 2023, there were five reports from medical experts, including the medical visitor who reported “that [A] does have capacity, is no longer of unsound mind and is capable of managing herself and her affairs, one further examination had to take place by [a psychiatrist] at the insistence of the CFA, with a report produced overnight that very much chimed with the four or five other reports dating from [late 2022] onwards that suggested strongly that [A] had regained capacity, is currently of sound mind and capable of managing her affairs.”
The President summarised the case stating that A had been admitted to wardship on the basis she lacked capacity, with the jurisdiction of the High Court invoked, however that jurisdiction was no longer engaged, “the court simply doesn’t have any ongoing jurisdiction and is not in a position to making ongoing orders, the complicating factor is that [A] is in the middle of an essential course of treatment, with another three weeks to go in the ward.”
He added that all the reports that he had received had shown that the young woman was engaging positively there and it was very much in her interests to engage, he had been impressed by the high level of her involvement and determination including her attendance at Narcotics Anonymous meetings. The President said that he noted what A had said to her solicitor, he noted her thanks and particularly to the previous President who tried to help her, dealing with her case over a number of months. The President also noted the work of her social worker, who had reported beyond his obligations.
“If there was anything I could do, if there was an order I could make to enable [A] to finish the treatment she is doing, but I’m not disposed to do that, I have no power to do that, the hope for [A] is that the determination and commitment that she has shown more recently will continue, she says herself that she is determined to walk and not use a wheelchair. There are obviously a whole load of supports she is going to need, including housing supports.”
He said he would certainly encourage the young woman to accept the help from the HSE and the supports. “It’s probably a good day for [A]”, said the judge, discharging the wardship orders, “perhaps you can pass on my best to [A] and my hope and encouragement that she will do the best she can do. Thank you all of you for all of your great assistance during the case,” he said in conclusion.