This case concerned a teenager girl who had been under a full care order since 2019 after her mother had died. She had been present when the death occurred and had a diagnosis of complex post-traumatic stress disorder. In Spring 2022, the girl’s foster care placement had broken down. In Summer 2022, she was detained in the paediatric wing of a hospital [hospital A] under wardship orders from the High Court for three months due to self-harming. During her time in that hospital she required significant medical supervision for escalating patterns of self-harming. She was subsequently detained in a children’s hospital [hospital B] and then in special care.
Paediatric wing of hospital (A)
The case returned to the High Court, because the teenager was thought to have ingested a fragment of a drink can on her hospital ward. The court heard that she subsequently had difficulty swallowing and coughed up blood. She was x-rayed but there was no evidence of the metal fragment. A surgical team in a children’s hospital [hospital B, where surgery would take place if so required] had been spoken to and had advised her clinicians in hospital A to watch and wait, the likelihood was that the fragment had lacerated her mouth and she had a legion or cut.
The President of the High Court asked the clinicians if there was “some question of a referral to the clinical director [of the HSE CAMHS in-patient unit] if she was able to go? I take it she couldn’t go now anyway because of the critical situation at hand?” (CAMHS: the HSE Child and Adolescent Mental Health Services)
The court heard from two clinicians working in hospital A. The first, Clinican 1, ordinarily based in the CAMHS in-patient unit, had been placed in hospital A as an honorary consultant. Clinician 1 told the court that while the teenager was “medically stable she needs such close supervision and the acute risk is incredibly high, there is a very high risk ongoing.” In relation to the can, the consultant told the court that the child’s room was stripped and the bins cleared but the fragment was not found. The court heard that she was now medically stable but the teenager had “not told anyone if [she had ingested it] or where it is, and she is still threatening to take her life and harm herself, that she has everything in place.” The court was also informed that from the tests that had been carried out, there was “no metal in her system at the moment”.
The court also heard from a second clinician working with the girl in hospital A, that she had made attempts previously to take her own life by cutting, ingesting dangerous objects and multiple liquid items. Therefore while the immediate risk had passed in relation to the fragment from the can, the on-going risk remained.
There was a staff ratio of two-to-one for the girl at night and three-to-one during the day. Cinician 2 stated that the hospital had brought in additional specialist staff, the CFA had been providing one such staff member, while the hospital was providing the other two. The clinician said that the very best care was being provided for the girl and the “safety and intervention that is within our capacity to deliver, the hospital has gone to extreme lengths to meet this young person’s needs, and will continue to work for her best interests at all times.”
The honorary consultant, (Clinician 1) explained that while the girl had managed a period of relative safety since the last court review, that this was “very much with the goal of trying to get to [the CAMHS in-patient unit], she’s acknowledging she was sick and needed help.” CAMHS had decided to not accept her into this unit. As decisions relating to care and in-patient units were outside the hospital’s control the honorary consultant had felt it was beneficial for the CAMHS team to explain their decision to the girl, whose fear was that she would “just be forgotten about”. The CAMHS team visited the teenager in the hospital during the week to deliver the outcome of their assessment to her. The consultant said the purpose of their visit was “to explain the rationale to her, it was very difficult for her to process this information of not being accepted there. We wanted to try and minimise therapeutic risk and put it into a positive light. She’s an intelligent young girl and seeks to understand the rationale behind decisions.” The CAMHS staff had reassured her that she would not be left without support.
However, after the meeting the teenager had been very tearful and had “kept repeating themes of ‘please refer me to any unit, a private unit, I need help’.” Clinician 1 had found the young girl to be distressed and agitated and she had “hit her head against a cot”, she had “very, very strong urges to self-harm, she didn’t know if she could sustain it for much longer. We continue to try and support her while acknowledging that we didn’t have the facilities of the special care unit or a multi-disciplinary team similar to that type of unit”.
After that meeting with the teenager, Clinican 1 had spoken with the clinical director of the CAMHS in-patient unit and he had come over to the hospital. He had explained to her that he could understand her “rationale for referral but also understood the rationale of the in-patient team, he said it was a fine balance, 60 per cent in favour of the in-patient team and 40 in favour of [the honorary consultant’s] concerns of how they manage the case appropriately, from a mental health point of view. The risk would be dynamic and ongoing.”
Clinician 1 had told the clinical director of the CAMHS unit that a re-referral may be needed. She had discussed the fact that periods of transition and discharge were a time of heightened rather than lowered risk for young people with attachment difficulties, and the clinical director had undertaken to speak to the in-patient consultants and ask under what conditions they would consider referral to the CAMHS unit. The consultant said that in the meantime she would continue to update the clinical director daily regarding the teenager.
The President of the High Court asked: “Does yesterday shift the ground for another referral?” The consultant replied that she had advised the clinical director and team in the CAMHS unit of what had happened. The hospital still needed the court’s oversight, she advised, as they were “limited in services and don’t have access to a multidisciplinary team. Young people in an in-patient unit may have opportunities for therapeutic leave, we don’t have that here, but we will continue to do what we can and update the [in-patient unit].” She stated that her personal clinical opinion had not changed but she acknowledged that it was not shared.
The barrister for hospital A asked her what sort of order should be made today, should they build in a provision for transfers to [hospital B, a children’s hospital] in an emergency, “knowing a real possibility existed that a very serious attempt may be made again by [the girl]?”
The second clinician told the court that hospital A did not have paediatric surgeons and were therefore “incredibly limited with onsite capacity. We have adult surgeons but they do not cover our service routinely”; the adult anaesthetic service was limited, “we don’t have the training, she is on an acute baby ward, within a paediatric ward, the mental health concerns are the real driving factor for all these actions”.
She added that the identified bed in the residential placement would not be ready for another week or ten days and while there was no acute immediate surgical need, that could change in half an hour and “we could be in trouble”. She added that she was coming into a weekend service and was worried that the incident with the can was “the beginning of an escalation of self-harm,” therefore a contingency plan of emergency and other input was required. She was on leave from the following day and would brief colleagues.
Clinician 1 told the court that she was “available all weekend so if there’s any change I can escalate with all the parties. This morning the risk was an acute medical one, we had an acute concern which has de-escalated in light of her x-rays but can re-escalate.”
The President remarked that it was a very difficult situation, the hospital consultants were clear what was in the girl’s best interests, “I can’t force [the CAMHS in-patient clinic] in relation to what they do, their view is against giving her the place there.” He noted that that may change in light of the “existing crisis, she might ingest something that would lead to a critical bleed. It looks as if it’s a review in a week’s time with additional orders to exist. It’s very grim.”
The barrister for the CFA told the court the CFA acknowledged the delays in obtaining a placement for the girl, however her onward residential placement was dependent on two other young people being ready to move on. A backup placement had been identified but it was felt that the other location was more suitable as she could stay there long term. However, plan B would go ahead in the event the preferred residential placement was not available and a senior clinical psychologist who had previously attended a professionals’ meeting regarding the teenager would be attending a meeting with staff to see what the therapeutic requirements were.
The solicitor for the guardian ad litem (GAL) said that the GAL felt it was important for the girl to fully understand the conditions on which the proposed residential placement may become available, “because if she is on board and then [the placement] disappears, it would be another huge blow on top of the blow of recent times. Each time she feels let down and it’s a big trigger in escalating her behaviour.”
The GAL was of the view in her report that the girl was “an outstandingly bright young lady and, she can understand legal issues and demonstrates a remarkable understanding of where she fits into this. Her ability needs to be safeguarded so she can deliver on that potential.”
The GAL added that the girl was “very in tune with the need for her circumstances to deteriorate significantly” in order for her to leave the hospital ward. However, she did not have a placement to transition to currently and “she is a product of the situation of the interplays between the various agencies and she is seeking a way out in her own manner and that is very regrettable.” There were variables in the transition plan to the residential placement that the GAL and the teenager had no control over in terms of planning therefore contingency plans were needed “but nonetheless she needs to be encouraged to engage in that process”. The GAL hoped that the CAMHS in-patient service would review the referral or that the girl would stabilise, but for now her safety had to be maintained within an environment that she clearly should not be in.
The judge remarked that it would be “very hard to get her to buy into [the residential placement] when she’s of the view that [the CAMHS in-patient unit] holds the silver bullet for her… in any event she is not getting the therapeutic support she needs now, I can sit any day to deal with this.” The judge listed the case to return in one week and adjusted the court orders for transfer to surgical care or transfer to a psychiatric setting, he also provided for leave from hospital A so that the teenager could visit the residential placement if possible in order to give her some hope [that she would have a long-term onward placement from foster care].
Twelve days later the teenager was discharged from the hospital as her residential placement was ready. However, she spent only one night there due a self-harming incident and was re-admitted to a children’s hospital unit (hospital B).
Children’s hospital (B)
The case returned to court and hospital B sought to extend the wardship orders for her continued detention there for two weeks. The court heard that a consultant psychiatrist in the hospital A had raised a query as to how she was given access to a razor on discharge to the residential placement. A further referral to the CAMHS in-patient service was being made and a meeting was due to take place with the professionals of the residential placement. The matter was being kept under close review.
The barrister for the CFA told the court that the residential placement was the appropriate mainstream placement for the girl and that “the majority of residential placements were mainstream, the hope is that she will be in a position to manage in the community.” He was instructed there would be more careful planning in the future regarding the razor and he told the court that he would ascertain how she had accessed it. The priority of the staff would be to ensure that it did not happen again.
The solicitor for the HSE told the court that the HSE had periodic involvement in the case. If she was admitted to a CAMHS unit, it would be the in-patient unit that she had previously been referred to [but which had not accepted the referral]. The question was if she had a mental health disorder, because admission to the unit required a therapeutic element to it.
The solicitor spoke about the WhatsApp group that the girl had been on regarding self-harming behaviours and this was being taken very seriously. WhatsApp had been contacted but their view was that “it is a private messaging service, TIKTOK are looking into what is being put up as they are naming clinicians.” A report on the matter would be shared with all parties.
The judge noted that it was “really worrying to see the existence of these WhatsApp groups that are potentially very dangerous for vulnerable children such as [this girl], we may have to come back to that in the context of this case when the immediate urgency lifts.” Orders were made continuing the wardship orders for two weeks.
Two weeks’ later
When the case returned the judge stated that he had read the psychiatric report from hospital A and described what he had read as a “disastrous state of affairs, the current situation is really disastrous”.
The barrister for the hospital told the court that the girl’s treating psychiatrist from hospital A was not in a position to stand over her discharge from the children’s hospital [hospital B] because [although she was fit to be physically discharged] she needed a psychiatric in-patient placement before going back to her residential placement. The residential placement was limited in the supports it could provide and no additional supports could be made available. “At the moment the least worst option is [hospital B, the children’s hospital].”
The judge noted it was no longer medically necessary for her to be there and that she was sharing a room with a young child with an injury. The barrister responded that “We’re at an impasse, we all agree it’s not appropriate, but what we can’t agree on is what the next step should be.”
The solicitor for the GAL told the court that a second psychiatric report [from a CAMHS in-patient unit] did not accord with her treating psychiatrist’s report that the girl should be in an acute setting. The second psychiatrist’s view was that she should be afforded the opportunity to function in a community setting and the initial CAMHS in-patient team shared that view. The solicitor for the GAL added that the second psychiatrist had said “we may see [the girl] becoming institutionalised.” The solicitor told the court that he had asked the clinicians to meet to try and resolve the conflict or “we will be in a cycle of in and out, frequent admissions and discharges.”
The President of the High Court commented that “the least worst option is potentially disastrous.”
The solicitor for the GAL told the court the second psychiatrist’s opinion was that the teenager was becoming “almost too comfortable” in the children’s hospital, she was an incredibly resourceful young lady with great potential but the psychiatrist “has said we may see her become institutionalised.” He added that a third psychiatrist, a HSE child and adolescent psychiatrist, was going to do an assessment of the teenager “it may bridge the impasse, all the professionals are operating with their best intentions.”
“I have no doubt about that,” replied the judge. The solicitor for the GAL added that the HSE child and adolescent psychiatrist [the third psychiatrist] had mentioned there could be “a referral possibly to special care, but she doesn’t meet the profile of a child to be admitted to a detention centre, within his experience of the profile on the list.”
The barrister for the CFA told the court that the residential placement remained open to the teenager long term and was appropriate within her profile. However the difficulty from the CFA point of view was that it did not have any medical practitioners on its staff, but the CFA was open to looking at extra supports being put into place for her.
The wording of the current order allowed the girl to be discharged to her residential placement in the event there was clinical agreement, without the matter having to come into court. The barrister noted there was impasse between the psychiatrists.
The solicitor for the HSE told the court when the matter had last been before the court, the CAMHS in-patient service had received a further referral from the consultant in hospital A, her fifth referral. Clinical opinion in CAMHS was that the teenager did not have a mental health disorder under the Mental Health Act, therefore the clinical opinion was to not admit her to the in-patient unit.
The second psychiatric report, which had come from a CAMHS psychiatrist had done a longitudinal assessment of the teenager and it also concluded that she should not be treated for a mental health disorder or admitted to the CAMHS unit. Therefore, from the perspective of the CAMHS inpatient units, the teenager did not meet the threshold for being admitted and it would be counter-therapeutic to admit her. The three clinicians had been asked to meet, in order to assess what supports needed to be put in place for the teenager’s safe discharge from the children’s hospital.
Institutionalisation was a worry for the treating psychiatrist in hospital A. The solicitor for the HSE felt that the teenager “seems to be fixated on getting into a CAMHS in-patient unit, when she doesn’t have a mental health disorder, these are places for exceptionally unwell people.”
The President of the High Court listed the case to return the following week and he thanked all the staff caring for the girl, in particular her treating psychiatrist. He noted the clinician had stated that “in the absence of inpatient care, she is at high risk of suicide and self-harm, he recommends a short structured period in a specialist therapeutic service such as [named unit]. The other doctors say it would be counter therapeutic to admit [her] to [the CAMHS unit], that [she] doesn’t suffer from a mental disorder, and therefore it would not be therapeutically beneficial.”
A second CAMHS psychiatrist “had prepared a very comprehensive report in an extremely tight timeframe and found that placing [the girl] in an inpatient unit would increase her institutionalisation and decrease her coping ability,” noted the judge. The GAL was not supporting continuing the order in the children’s hospital [hospital B] and believed it was “profoundly disturbing that someone in [the girl’s] position remained [there], the warnings are there of the likelihood of her becoming institutionalised, in the circumstances I am very grateful to the medical practitioners involved.”
The judge continued the orders, stating “the only option that I have, is the least worst option in the circumstances, is to continue the orders but to do so for the shortest period of time”, in order to allow the HSE child and adolescent psychiatrist to carry out his assessment. “The current situation is untenable and it’s with a really heavy heart that I continue the order when I know it’s not the appropriate place but she has no-where else to go.”
Three weeks’ later
When the President of the High Court heard the case again it was three weeks later and by that point the young teenager had been approved for special care, however there was no bed available for her. Therefore, a continuation of the orders providing for the child’s detention was sought by the CFA. The solicitor for the GAL told the court that the girl remained in the care of the children’s hospital which was not an appropriate placement for a “young girl with her needs”. A medical visitor had concurred that she required inpatient treatment and had recommended special care. The GAL solicitor said that the appropriate person to hear from was the solicitor instructed by the CFA, but “it may be that proceedings will have to be brought against the CFA.”
The solicitor for the CFA referred to the impasse between the girl’s treating psychiatrist from hospital A, who had advised that she needed inpatient CAMHS psychiatric care, and the CAMHS inpatient unit team saying “she did not”. The CAMHS psychiatrist’s report of mid-August had advised that “special care is the best option”. The report of the social work team leader outlined the instances of self-harm since the last court date. “The CFA were charged with the decision of whether the child requires care in special care. Towards the end of August the application had been put together…the difficulty now is that there is no special care bed.”
The barrister for the CFA named all of the special care units and explained that they were all at full capacity and that no bed would be available until a child was discharged from one of them. It was likely to be a question of weeks rather than days. “We might all collectively take the view that there should be a policy of spare capacity in the special care units,” he noted and told the court that he understood the possibility of a notice of motion to judicially review “if a bed isn’t found for this child next week, we’re not a position anyone desires, I would like to tell the court that I have just finished drafting a special care order but I’m unlikely to have anything in way of an update for about a week.”
The solicitor for the GAL explained that as a quorum had not been reached to convene a special care committee meeting in mid-August when the case had come before the sitting judge, the meeting was held over until a week later when it was unanimously determined she met the criteria for special care. This was now a “10-day old determination” and the CFA had a statutory obligation to pursue an application for special care, he noted that he would soon have to pursue a relief against the CFA seeking mandatory orders requiring special care. He had written to the instructing solicitor for the CFA in that regard.
“[This girl] is being failed by the State as a consequence of the failure to provide a bed for her, as a consequence we will [soon] have a JR live, interim care proceedings live, wardship proceedings live, this is a sharp warning to [the barrister for the CFA], and I fully accept their limitations but I have to bring this application, I regret it has to be done but it does. Further resources are needed to provide for these children’s needs. She was in a not dissimilar position in [hospital A]. There will be an application failing [the CFA] adhering to the timeline set out.”
“What can [the CFA] do if there is no bed?” asked the President of the High Court. “That’s the challenge, judge,” replied the solicitor for the GAL, “the purpose behind the application is to force the Agency. They will plead it is not appropriate for the court to force an allocation of resources, the purposes of the application, the refinement of it into a judicial review application, will force them to make the application, and other than to reflect and cite resources but what it will do is elevate [this girl] to the top of the list for the next place in special care.”
The barrister for the CFA pointed out that the special care placements were operating at capacity, which was the reason for no bed being available.
The judge continued the orders for 10 days. The judge summarised the proceedings and noted that the solicitor for the GAL had written to the instructing solicitor for the CFA threatening separate [judicial review] proceedings if a bed was not provided to the girl, “not an idle threat he says but designed for the very express purpose of securing a bed in a unit. I have considered all of the evidence. I have no alternative but to continue the existing orders, it really is a scandal that there is nowhere to provide for her existing needs, it’s outrageous that no place is available for a young girl in her position, it really is quite outrageous. I will continue the orders [for 10 days].”
The teenager had now been in the children’s hospital for over two months.
On the next court date the barrister for the CFA had been instructed in the previous few minutes that a bed had become available in a special care unit. He had instructions to make an application for an interim ex parte special care order, the affidavit was being drafted with a view to having it sworn and it was his intention to use the psychiatric reports from the wardship proceedings, in particular the report of the CAMHS psychiatrist and the girl’s treating psychiatrist from hospital A, where she had stayed under wardship orders, for three months. The barrister told the court that he would move the special care order under paragraph 12, Part IVA of the Child Care Act 1991, before or after the wardship list, fundamentally the special care bed was now available.
The judge extended the wardship orders for one day so as the CFA could advance their application the following day. The following morning, on application to the High Court, an ex parte interim special care order came into force for one week, allowing for the wardship order to be discharged at 8pm that evening to ensure the continuity of lawfulness for detention at the children’s hospital and a ‘for mention’ listing of the case before the President of the High Court was given for October. The girl was discharged from the children’s hospital into special care the next day.
The following week the barrister for the CFA moved an ex parte interim special care order application on consent. The barrister for the CFA told the court that the child mother was deceased and her father was consenting to the special care order and was legally represented. While under the care of the children’s hospital, it was the view of the consultants that the teenager required a secure facility other than a paediatric hospital. The opinions of two psychiatric consultants from two CAMHS units were obtained and both institutions had opined that the girl was not suffering from a mental health disorder and therefore not suitable for treatment in a CAMHS in-patient unit.
An assessment had recently been conducted on the teenager by a HSE child and adolescent consultant psychiatrist who was very well known in special care. His reports advised of self-harm relating to complex trauma and post-traumatic stress disorder. The teenager had gone into care shortly after the death of her mother, her trauma was also complex due to neglect and alleged sexual abuse. She sought attachment figures and security and a pattern of self-harm had escalated in frequency and severity. The psychiatrist advised that the girl required a period of time in a secure setting, secure care or a hospital admission, and that while she did not present with a psychiatric illness that required in-patient treatment, she did require consistent care to develop her own capacity to manage her feelings, in a setting such as special care.
The barrister for the CFA told the court that the Agency had “taken all steps reasonably open to it to make the decision that special care is required.” The interim special care order was made ex parte and could not be made for longer than a period of eight days, including the first and last day. The Minors’ Review List was sitting in the morning. The report of the child and adolescent psychiatrist meet the behavioural tests required under the Child Care Act, the pattern of self-harming was escalating over time and the “risk is immediate, [the clinician] expressly recommends an order at this time, the child requires special care immediately, the determination will be made today but it will be tomorrow before I can get the order under section 23H [of the Child Care Act 1991],” explained the barrister for the CFA. The application that day was an inter-parte interim special care order, he was originating a new set of proceedings and was asking the court to issue a short service to issue a motion returnable for an interim special care order the next day. He also asked the judge to strike out the ex parte interim special care order.
The barrister for the GAL told the court that the GAL had been appointed in respect of the the ex parte interim special care orders the previous week. She had also been appointed to the child since last summer in respect of the foster placement breakdown and had seen her on five occasions. “She has two roles, to advise the court on [the girl’s] own wishes and feelings and to advocate for [the girl] on her best interests as a matter of her own objective judgment.”
The GAL’s report stated that while the girl understood why she was going into special care, she was “a bit confused about its purpose”. It was the GAL’s “objective view that it is what [the girl] needs to provide for her welfare and that no other type of care will provide what she requires at this time.”
The GAL told the court that the teenager thought special care “will be good for her, she told me that she understands she is likely to be staying in [the special care unit] for three months and that it will be good for her.”
The judge granted the order sought, accepting the content of the GAL report, that the teenager herself was of the view that the care anticipated in the special care unit “will be to her benefit and [I accept] the view of [the HSE child and adolescent psychiatrist] that she seeks attachment figures and seeks security, three months in [the special care unit] will provide her with security and the GAL says no other form of care will suffice for the care of [the child].” The order was not merely an interim special care order but one sought inter parte noted the judge, and it supplanted and replaced the one sought ex parte.
He concluded that there was reasonable cause to believe the girl was at risk and needed special care, he therefore made the order “to protect her life, health and safety.” He noted this was an interlocutory special care order and that it was the intention of the Agency to make a determination under section 23F of the Child Care Act 1991 to apply for a full special care order and that determination would be the next day. The CFA had in that context also asked the court to grant liberty of short service for a notice of motion seeking that order. The judge said he would grant liberty to issue the notice of motion, on foot of the application that a full special care order would be made.
The following day, a full special care order [the duration of which is three months] was made in respect of the young teenager, whose foster placement had broken down five months previously.