Summary
In a High Court case heard over a number of sittings, the Child and Family Agency (CFA) sought an Article 56, Brussels II bis order from the court to use its inherent jurisdiction to transfer a minor to a low secure psychiatric child and adolescent therapeutic centre in the other jurisdiction in order to obtain appropriate medical and clinical treatment.
At the time of the hearing, the minor, aged 17 years and two months, was an involuntary patient on an adult psychiatric ward. The minor wished to remain in Ireland. As the child’s view was different to that of his Guardian ad litem (GAL), who supported the CFA application, the boy was joined as a party to the proceedings.
The case involved six parties – the teenage boy, the boy’s mother, paternal grandfather, the CFA, the Health Service Executive and the GAL – each of which were represented in court by senior counsel. The social worker, the GAL and five psychiatrists were called to give evidence. Psychiatrist A had treated the boy in an adult hospital; Psychiatrist B was the CAMHS advisor; Psychiatrist C was the Clinical Director of the adult hospital where the boy was being treated at the time of the hearing; Psychiatrist D was treating the boy; Psychiatrist E was appointed by the boy’s legal representatives to provide an independent input to the court.
The boy’s mother was present in court and legally represented. His father took no active role in relation to this application, he was described as experiencing his “own personal difficulties”. The paternal grandfather is a party to the proceedings, he was present in court and legally represented.
The court was informed that the boy’s childhood was described as “difficult and challenging”, his parents separated and his mother remarried. He had a strained relationship with his stepfather. He presented with behavioural difficulties from a young age. The boy moved out of the family home to live with his paternal grandfather by private arrangement. He maintains a close relationship with his mother, grandfather and siblings. He had a history of school absenteeism and drug use.
The teenager’s behaviour was described as high risk, violent and threatening. He has experienced multiple placements including time in a number of residential care placements, homeless accommodation, a Children Detention School and a Special Care Unit. At the time of the High Court hearing, the teenager was being treated in single isolation in an adult psychiatric hospital (referred to as Hospital A).
At the end of several hearings the judge delivered her judgment ordering that the boy be detained in the named unit in the UK. The full judgment was published on the website of the court service. The judge read part of her written decision to the court. It included her conclusion: “Having weighed up all of the evidence in this case and notwithstanding [his] views and that of his family, the Court can only conclude that it is in [his] best interests that he receive the appropriate treatment and therapeutic benefits available at [the UK unit] and that he be detained there for that purpose. Having weighed up all of the evidence in this case and notwithstanding [his] views and that of his family, the Court can only conclude that it is in [his] best interests that he receive the appropriate treatment and therapeutic benefits available at [the UK unit] and that he be detained there for that purpose.”
Within four months of the admission to the UK hospital, the young person was reported to be engaging at a meaningful level not done for a number of years and was in the best place ever regarding private family relations.
Order Sought
The Child and Family Agency (CFA) sought an Article 56, Brussels II bis order from the High Court to use its inherent jurisdiction to transfer a minor in voluntary statutory care in Ireland to another jurisdiction outside of the State. At the time of the hearing, the minor, aged 17 years and two months, was an involuntary patient on an adult psychiatric ward. The CFA application was supported by the HSE.
The teenager wished to remain in Ireland and did not wish to partake of therapy in the proposed institution in the UK. His view was different to that of his GAL, who felt it was in the teenager’s best interests to be admitted to the low secure psychiatric child and adolescent therapeutic centre in the other jurisdiction (referred to as the UK unit).
Senior counsel for the CFA told the court at the outset of the hearing that he would sketch out the legal landscape and then indicate the nature of the orders being sought and the findings of fact to be considered. He said that the non-contentious evidence would be proved in as short a form as possible with factual issues to be called as evidence.
The habitual residence of the minor was established as being in Ireland, said senior counsel for the CFA. As the holder of parental responsibility, the CFA wished to place the child in institutional care outside of the state for assessment in the first instance. The document of plenary summons had been issued and lodged to the court and the High Court was now seized of the matter. Before the matter became effective in the other jurisdiction an application would have to be made before the High Court in London where the justice there would recognise and register that order.
The High Court in London could then use its own law and inherent jurisdiction to hold the status quo through wardship so that the order could be provided for in a neighbouring jurisdiction. The placement of the child in the other jurisdiction could not be made until the High Court in Ireland had given its consent to the Article 56 application.
However, said the senior counsel for the CFA, the question for the opportunity for the child to be heard could affect the making of the order.
The consent from the Department of Health was not time limited, nor was the Article 56 application. While exercising its inherent jurisdiction the court could make a decision to detain ordinarily for four weeks, or less, or more. In the UK the court was satisfied that on each adjourned date an intensive welfare review would be carried out in the Irish High Court on all the material circumstances of the young person. Relevant submissions would be made on behalf of the child at the Minors’ Review List and the UK High Court did not see that it would be in the best interests of the child to have two hearings, on the basis that the Irish court conducted it.
Senior counsel told the court, when faced with an application to override parental consent, the court should exercise its powers in the best interest of the child where those interests were paramount. “The court must do the best it can to balance all the considerations and do the best it can to see where the best interest’s lies.”
Where there was a question of a medical procedure being forced onto a child, it should be looked at under the High Court’s inherent jurisdiction. Furthermore, the CFA had parental responsibility within the meaning of the regulation pending a finding of fact.
Senior counsel for the CFA submitted that the finding of fact was a mental disorder which warranted detention in hospital to receive treatment for his immediate well-being. The minor lacked the capacity to make decisions regarding his treatment due to his age and the effects of his condition, therefore it was sought that he be placed as soon as practicable under the care and supervision of the health team in the institution in the UK in order to assess, care and treat his mental health circumstances and form a plan.
The formulation of a treatment plan and a mental health treatment plan would take place. However there was also the question of access and family contact, the support and participation of the family was needed regarding the placement abroad, it was “a kernel element” of the plan. And it was not just access simplicitar, the family concerned were entitled to airplane tickets, travel tickets and reasonable subsistence provided in advance. Directions in that regard would be complied with if the judge made the order.
Senior counsel for the CFA said that if the court was satisfied to make the Article 56 order for transfer of jurisdiction then the help of the Admissions Assistance Service of the State would be used in order to effect the transfer. Using the State jet, the minor would fly to an airport near the institution in the UK, An Garda Síochána and the clinical staff involved would travel on the jet with the minor. This would all be done in a manner which least distressed the patient.
These were the orders being sought.
Evidence of first psychiatrist (A)
The Clinical Director of the Central Mental Hospital and consultant forensic psychiatrist was the court appointed expert. He assessed the teenager in Hospital A in autumn 2016 and told the court he met the diagnostic criteria for attenuated psychosis. He said the boy was in the “at risk mental category” with an increased risk of a severe mental illness in the next year with a typical progression to schizophrenia or bi-polar disorder. The risk was no more than one in six but there was some evidence that interventions could improve the prognosis greatly.
In the next six to 12 months, his life was at risk and any risk assessment would show that there was a high imminent risk of serious harm, including death because of the nature of his behaviour in recent months. Furthermore, when at liberty he repeatedly engaged in impulsive, unpremeditated, reckless behaviour and engaged in acts which were dangerous to himself, he had attempted to hang himself and had jumped off certain locations in circumstances, these had been potentially fatal attempts and were not superficial attempts.
This psychiatrist told the court that if he did not receive treatment there would more than likely be an adverse outcome. The behaviours which arose from his mental disorder were greatly exacerbated by his substance misuse which required an enforced abstinence. He told the court that the boy’s diagnosis includes “effective instabilities” also referred to as “emotional dis-control”, sudden and abrupt mood swings. A common cause of his effective instabilities has been substance misuse. During the boy’s placement in Hospital A he has been free of toxicants but had even so he had experienced some emotional instability when clean.
This substance misuse resulted in mood swings, impulsivity and impaired judgement which could last a week or sometimes months, the progression of an at-risk mental state to a full blown mental illness was then increased. Psycho-educational and cognitive behavioural work was only possible in the context of prolonged stability in a therapeutic setting which was safe and secure where he could not obtain drugs or easily abscond.
Senior counsel for the minor asked the psychiatrist if detention was necessary. He replied that it was and that it was likely to take 12 weeks for the new multi-disciplinary team to get to know the patient and for him to acclimatise.
“Is there a facility in the State that can provide the medical treatment that this person needs?” asked senior counsel for the minor. Psychiatrist A replied that he was satisfied that every reasonable possibility had been explored and had not proved viable. “I don’t know of a facility in the State that can meet his needs,” he told the court. “To protect his life, in my opinion he needs a period of sustained treatment in a therapeutic, safe and secure setting. It’s likely to be at least for a year, it cannot be found in the State. [The institute in the other jurisdiction] is the one most likely to meet his needs.” In his opinion he needed sustained treatment, under conditions of enforced abstinence for a period of six to twelve months.
The teenage boy was currently in an adult high dependency psychiatric ward in Hospital A. The psychiatrist described the boy’s room as being big enough to fit in a single bed and two other people, one nurse was always present and another nurse was observing him. When he was able to move about, it was within the confines of a small high dependency unit where the most disturbed adults patients were admitted, he could only move around when those patients were not out of their rooms. He had limited access to fresh air and exercise, and no access to education. “His present situation in a small bedroom with two nurses is not helpful,” remarked the psychiatrist.
In a court report dated the from November 2016, the psychiatrist had been of the opinion that the same therapeutic benefits could be gained where he was currently in Hospital A as in the UK unit if he was attended daily by doctors from Monday to Friday, including psychological and occupational therapy (OT). The psychiatrist had been of the opinion that the location in the UK would adversely affect the treatment because the minor did not wish to go there or partake. Engagement in therapy was everything, he told the court, “but it’s also not a 100 per cent bar in proceeding because care and safety provide one in acting without consent, also there is a cycle of change, you can begin to work with someone where the starting point is rejection and resistance. It is the skill of the therapist to work through the stages of changes, proceedings through stages of doubt.”
It was not perfect that contact with family would be much more difficult because the placement was out of state but one had to go long distances to find ways to facilitate therapy while living with the fact it was not perfect, he told the court. Therefore, the psychiatrist told the court that he had now moved from that view to a broader consideration because it was not possible to organise the treatment in Ireland and furthermore the Mental Health Commission did not approve of treating a young person in an adult unit.
Moreover, the teenager would not have the company of a peer group or the daily care of nurses and psychologists and OT specialising in the care and treatment of his age group or a programme of treatment for at-risk mental state.
The factual matter which had caused him to change his mind was that he considered if a longer term placement could not be provided by the HSE in the high dependency unit in his present hospital, than an alternative should be sought. An acute adult, low secure unit had refused to accept him as it was an adult environment.
The worst case scenario regarding the out of state placement, said the psychiatrist, was that the teenager would still be in a safe and therapeutic setting [in the UK] and would be kept drug free, he would also be unable to abscond and there was no equivalent in the State that could achieve those rock bottom basics. It was better than what was available at this time, provided a sufficiently long view was taken which was nearer to the 12 months range. Therefore his opinion had changed from his court report of November 2016 to that of his court report of early December 2016.
This psychiatrist said that the boy’s presentation was now “substantially” different from that of two months ago. He said the boy’s adherence to prescribed medication was poor while he was in Secure Care. Senior counsel for grandfather asked if the boy could be placed in a Special Care Unit or a Child and Adolescent Mental Health (CAMHS) Inpatient Unit with greater psychiatric support. The psychiatrist did not consider this a feasible solution as the issue is not just his medication but the way he was currently being cared for and treated is under the close and constant 24 hour supervision of two nurses who are within sight and arms reach of him. Psychiatrist A said the boy also needed therapeutic intervention, and no access to intoxicants as for him it was prolonged abstinence that mattered, his abstinence efforts could be undone in a day.
The psychiatrist said the other concern was his expressed emotion which is a common cause of relapse. He had difficulty in dealing with strong emotions, was prone to emotional instability, and being cared for constantly in the presence of the two nurses almost guaranteed that his interactions, including with his significant others, were managed and supported. What was working now was that he had all three elements working together – abstinence, medication and the environment, he said. The psychiatrist told the court that the boy needed a setting that has all of those elements while also allowing him freedom of movement with his peers so he could mature in other ways. He said his current stability needed to be sustained so he could benefit from other types of learning and this could be done in his current placement in Hospital A.
The grandfather’s senior counsel asked was there a way to modify a Secure Care Unit to provide him with the same level of nursing staff supervision as the UK unit which had a ratio of nine nurses for every ten patients. This would prevent him from being divorced from his home environment and the support he got from his family, it would also avoid other adverse consequences that could arise given his absolute opposition to the UK placement. Psychiatrist A said that option had been “tried and it failed”. He had been in a Special Care Unit and had everything it could offer. The senior counsel commented that his time in the Special Care Unit was prior to his diagnosis and he was not calm during that period. Senior counsel for the CFA pointed out that the Special Care Unit was not an approved mental health treatment centre. However, the court was informed that the placement did not need to be a registered centre as it was being made under the inherent jurisdiction of the High Court, and there was precedence for the High Court placing someone in a non-approved centre. The judge invited legal submissions on this point.
In response to this discussion, the psychiatrist A argued that: 1) a Secure Care setting was fundamentally different as it was a social care facility, there were no resident psychologist etc; 2) it was not possible to get the boy to adhere to his medication regime when he was previously in a Special Care Unit; 3) while the Special Care Unit and the UK unit were both classified as low secure centres but the UK one was staffed as a medium secure unit so it would be harder for him to abscond. In summary, the level of treatment and relational security he needed was available in the UK unit and not in the Irish State, said the psychiatrist.
Evidence of second psychiatrist (B)
The second psychiatrist to be called to give evidence was a consultant child and adolescent psychiatrist and the HSE’s National CAMHS Advisor. The psychiatrist’s testimony was brought to a close as the other parties had not had sight of the 2016 inspection Care Quality Commission (CQC) report on the UK unit he was citing from: they had been working off the 2015 inspection report. The judge indicated her dissatisfaction that the CFA’s legal representatives had not furnished the court with the 2016 report nor indicated its existence to the other parties in advance. A criticism was also made that the psychiatrist had not provided the court with a written report. The psychiatrist’s evidence resumed at the next hearing of the case four days later.
This psychiatrist said he feared that the boy was at risk of a serious psychiatric illness if there was a deterioration in his mental state and that he was at a high risk of relapse if he got access to psychoactive substances. He said he had explored possible placements in Ireland but there was no secure adolescent facility in this State nor any facility “that can meet the individual’s needs in this State”. He had looked into a possible placement in Northern Ireland but it was not a secure unit. The psychiatrist told the court that the construction of a secure inpatient facility for children and adolescents is scheduled to be opened in Dublin in 2019 or 2020.
The question was posed that if the boy’s psychosis resolved even more would it be possible for him to be treated in a specific health care unit in Ireland. This unit has been used as a step down for several young people who returned from the UK unit. The psychiatrist replied that he did not think this option would be appropriate. He told the court that “the best model of care for the boy at this time is within an appropriate inpatient setting” and explained that there are “very distinctive differences between a secure and open facility” and that the boy had “exceeded the capacity of the [inpatient CAHMS unit] to meet his needs”. He said you “can’t make an open environment a secure environment”.
The psychiatrist gave evidence that the UK unit would be an appropriate setting to meet the boy’s needs and provide him with structured activities and access to his peer group, within a secure setting with professional trained staff. The teenager would have access to a full range of therapies, including psychiatric, psychological, social work and OT interventions and educational and recreational facilities.
A forensic multi-disciplinary team would undertake a 12 week assessment process in the UK unit, and the boy’s care would be reviewed every four to six weeks. He had no reservations about recommending the UK unit and defended criticism of the unit put to him during cross-examination and also provided updates on improvements taking place there. In response to queries on family access, the psychiatrist said as a national facility it was used by young people living long distance from their families and had accommodation for relatives. He said it was understandable that the boy would be daunted to travel abroad, and be concerned about returning to this country and access with his family members.
Evidence of third psychiatrist ©
The taking of evidence continued with a third psychiatrist, the Clinical Director of the adult hospital, Hospital A, where the boy was being treated at the time of the hearing. The psychiatrist agreed that in the absence of an appropriate facility in Ireland, the boy should be placed in the age appropriate unit in the UK where he would have access to his own peer group and educational opportunities. She said the high dependency adult unit with no therapeutic supports where he was being treated at that time was not inappropriate. The court heard that the teenager continued to be a management problem on the ward and was considered an absconsion risk. When asked if additional services could be brought into Hospital A to meet his needs she said “no, it would not be satisfactory, it is not secure and it is not appropriate”.
Senior counsel for the mother asked why the boy could not get occupational therapy on the ward. The psychiatrist replied that such a service was provided in the general adult ward but the boy could not access it as he was an absconsion risk.
Senior counsel for the boy questioned whether the boy’s placement in an adult unit was uncommon and asked if 16 or 17 year old depending on circumstances are more akin to an adult than a child. Psychiatrist C replied “no – a minor is a minor.” In response to further questioning on this point from the mother’s senior counsel, the psychiatrist said the boy “is particularly complex with complex needs”, she described the boy’s behaviour as “very difficult” and said Hospital A was “sub-optional” as he needed a specialist facility like the UK unit. The psychiatrist said we have an option and a chance to access the best specialist care in the UK. When it was pointed out that this would be “at a cost” to the boy, the psychiatrist replied that there were “risk and benefits”. She said the risk was that he was a “highly impulsive unwell individual who requires intensive specialist care otherwise his outcome could be a fatal one.”
The psychiatrist outlined that Hospital A had referred the boy to a Psychiatric Intensive Care Unit in another facility in Ireland but both referrals were rejected as he was under 18 years, it was not a therapeutic setting, and there was an individual on the same ward in the proposed centre who was considered to be a potential danger risk to the boy.
Evidence of fourth psychiatrist (D)
The fourth psychiatrist to give evidence was a consultant child and adolescent psychiatrist who worked with adolescents in Secure Care. At the time of the High Court proceedings, he had known the boy for eight weeks and was his treating physician in Hospital A. He informed the court that the boy presented with psychosis, mood disturbance, and personal and social needs.
This psychiatrist said the boy needed to learn how to develop healthy attachments and emotional dis-regulation. He outlined progress the boy made in recent weeks. He said the staff were initially scared of him but now he was able to engage on a reasonable level. The psychiatrist described that the boy’s positive symptoms of psychosis, such as hallucinations, were in remission. His acute symptoms subsided within two weeks of admission to Hospital A. He described how the boy suffered from a heighted sense of paranoia so he would misinterpret the tapping of a foot as a personal attack on him. He noted that the boy was at high risk of relapse. He said he had experienced an exceptionally long time in which his psychosis was untreated. The doctor said the boy has a 20 to 30 per cent chance of developing psychosis. He also noted that it took a long time to learn how not to respond to people with aggression and violence. He said the boy had been “massively out of control”. In terms of key performance indicators, he said the boy was “not dead, no one else is dead”.
The psychiatrist was asked about a diagnosis provided by Hospital A for the boy earlier in the year which concluded that he suffered from ADHD, poly-substance misuse and conduct disorder. In addition, the court was informed that during a 2015 the UK unit diagnosed the boy as having a conduct disorder and found that an admission would not be appropriate at that time. The psychiatrist said that the symptoms of psychosis may be very subtle and may not be apparent in a short assessment. He said the boy was most likely displaying conduct disorder symptoms at the time.
In response to questioning if the conduct disorder was a factor in an emerging personality disorder, the psychiatrist said that over the course of the 15 or 16 hours he has spent with the boy he did not think that he had an emerging personality disorder. He said this did not fit as “he is not spiteful or vindictive”, he was “insightful, friendly, good humoured and amicable.” He said the boy could: “recognise when he’s having a bad day and can try to regulate it”. In an age appropriate way he was still just an adolescent. He had the ability to weight up different pros and cons. When not having an episode of effective dis-regulation, he was well able to express his views and has a degree of insight “as good as most 17 year olds.”
He agreed with Psychiatrist C that Hospital A was not appropriate, he said it was missing the gambit of therapies he needs. He also ruled out a Special Care Unit on the grounds that it was not a mental health care facility and could not manage his medication. The psychiatrist reminded the court that the boy had a hugely traumatic history with a Special Care Unit and cautioned that his “disordered attachment could trigger massive relapse” if he was returned to that particular Unit.
The psychiatrist recommended a “time limited placement in [the UK unit] or its closest equivalent in Ireland” for the boy. He said he could not recommend a facility in Ireland as it was not his area. He was asked for his views on out-patient care. In response he said there were benefits and risks to returning to standard out-patient care and returning home. He said there was a “huge psychiatric risk” and the one must weigh up short term benefit at the cost of a longer term risk and short term risk against a long term benefit.
The psychiatrist said the boy needed four things. 1) to stick with his medication; 2) abstinence from narcotics; 3) a broad range of therapeutic inputs; and 4) a secure setting. He said there was no such setting in Ireland.
He said that under the NICE Guidelines all treatment should be time limited. When asked about the time the boy would need to spend in the UK unit he said he could not answer as he had no experience of that centre. He said he had heard of people who have gone there with no therapeutic goals and then had difficulty returning to Ireland. The court was reminded of Judge O’Hanlon’s observation that it is easier to get into the UK unit than to get out of it. The court was told the boy “has come from a place of complete chaos” so he wanted to know when he was returning.
Psychiatrist D was also questioned by senior counsel for the GAL. He said he met the boy twice a week and had developed a rapporteur with him. He acknowledged that it was important for the boy to have family access, “it is really nice” for him and it “would be really good for him”. Senior counsel for the grandfather told the court the grandfather visited the boy every day in hospital, the psychiatrist acknowledged that if the boy left Ireland contact with the grandfather would be substantially reduced and it would be a “considerable wrench” but that the benefits for the rest of his life must be balanced with the short term benefits.
The court heard that if the teenager went to the UK all his support people would be absent for considerable periods. He did not want to go, he would be lonely. The doctor said he had done very well in Hospital A and this had had a huge impact on his relationships. The question was put “are we setting ourselves up for failure, causing him a setback?” it sounds wonderful in theory but are we taking a risk. The psychiatrist responded to these comments by saying that the way the boy had developed an insight into himself that he could do very well in the UK unit. “He has a window of opportunity that has not previously existed”, said the psychiatrist.
The psychiatrist was questioned on the anticipated resistance from the boy. The doctor replied: “It’s a risk but he could do well for himself”. With the right supports and encouragements people do really well, he said. The psychiatrist said when discussing treatments the boy had insight and he said: “I have encouraged him to make his own reasoned judgment.” He said: “It is one last shot before he turns 18: most of his adolescence has been complete chaos.” The court was told the boy was missing years of experience of developing attachments. The psychiatrist was asked if he thought the boy could in ten months to remedy years of dysfunction. The doctor replied that what the boy needed was to access education and to develop healthy attachments – he said there was no way to learn those things in a high dependency unit.
The psychiatrist told the court that the boy potentially has an attachment problem in relation to his fixation with one of his former care placements, he said that such a difficulty could take years to resolve and was very complex. During the hearing, several other witnesses also raised concerns about this unhealthy fixation.
Evidence of social worker
The social work team leader gave evidence based on a composite social work report prepared for the court. She confirmed that the boy was born in Ireland and was habitual resident here. She said she had regular contact with the boy over the past year and a half. She said he has been in single occupancy since July 2015, including the entire time he was in the Special Care Unit.
The social worker said it was a challenge to have a relationship with him: “I need to be mindful of a risk to myself and others, I tread careful in how I talk to him.” She described an incident that occurred while they travelled in a taxi together, she described the boy as “intoxicated and aggressive” and “very threatening”. She said: “In my 12 years of working I have never come across such a high level of risk to myself”.
She also said that he could be very nice and polite. She described how when he was in the Special Care Unit she was unable to get to talk to him as he was so threatening to her. He was in single separation and was tormented in his mind. She said his presentation has improved in Hospital A and it is now possible to engage in conversation with him. The social worker highlighted some key incidents from his recent care history including a number of incidents where he had absconded from his placements and attempted to harm himself. She also said the boy had developed an unhealthy fixation with one of his previous care placements, including making threatening statements.
Senior counsel for the mother highlighted documented concerns with the UK unit, including excessive use of segregation and restraint, failure to monitor use of tranquilisation and lack of training for staff. Under cross-examination, the social worker said she had not visited the UK unit but had looked at it on the internet, spoken to its staff and had read some of the CQC reports. The social worker said she did not have huge concerns about the UK unit and that the UK unit was the “best option for him” in terms of keeping him alive and providing him with opportunities. The social worker said she had explored alternative placements in Ireland and Northern Ireland and all possible options had been exhausted.
The social worker outlined two missed opportunities in the boy’s psychiatric case. She said that in August 2015 the boy was admitted to the Accident and Emergency Unit of a Children’s Hospital and was seen by a psychiatrist (Psychiatrist F) who recommended the boy undergo a forensic assessment. This did not happen. A year later another psychiatrist (Psychiatrist G) withdrew consent for such a forensic assessment as she did not deem it to be unnecessary. The social worker did not ask why Psychiatrist G, who is no longer involved in his care, took this position.
The social worker committed to support regular access between the boy and his family, who she acknowledged had been consistently supportive of him. This support promised include covering all expenses, making travel arrangements and providing someone to accompany the grandfather when he travels if he so wished. The social worker was unable to confirm if the boy would have access to Skype while in the UK unit. Senior counsel expressed disappointment that their request that someone from the UK unit would be available to say what means of communication would be in place was not met. She committed to the fact when the boy returned from the UK there would be a plan put in place jointly between the CFA and the HSE for his aftercare supports.
Evidence of GAL
The GAL gave evidence that she was appointed to the boy in mid-2016. She described the boy as “a very nice young person with lovely manners” and “very articulate”. She supported the application for the boy to be placed in the UK unit. She said it was in the boy’s best interest to be in a placement with a model of care that can meet his dual needs of psychiatric and social care. She said such a unit was not available in Ireland. The GAL had visited the UK unit on several occasions. She said “given his age, this is his last chance prior to turning 18 years, time is of the essence for him now.”
The court was told the focus addressing his behavioural difficulties had meant that all of his other needs had gone unmet and unassessed. When she met him in the Special Care Unit she said it was clear to her that the boy needed a mental health assessment, she described him as “mentally tortured”. She told the court it was “immediately apparent there was a mental health component and not just behavioural difficulties.”
The GAL agreed with the social worker that his behaviour had improved in Hospital A. However, she said it was “highly inappropriate, he had no peers, and “in his own words he is ‘bored out of his mind.’” She said his time will be occupied in the UK unit with age appropriate activities, unlike in Hospital A and she hoped he would engage.
The GAL informed that court that access between family and a young person in the UK unit will depend on the individual care plan and would be at the discretion of the UK clinical team. Concerns were raised again during cross-examination about the capacity of the UK unit, for example a shortage of staff impacting on activities.
On being asked if she agreed that this court could make an order that proper services be available to the boy in light of his needs, she said it was not possible during this timeframe to find staff and premises.
Evidence of Psychiatrist E
Psychiatrist E was commissioned by the boy’s legal representatives to provide an independent assessment of the boy. The psychiatrist outlined her experience in treating psychosis and in treating young people in late adolescence. She explained that 16 and 17 year olds were seen solely by the adult services up to recently and the Accident and Emergency Units of one of the children’s hospitals would not see children over 16 years, so the hospital where she herself worked saw this age cohort and it was not unusual to see young people with psychosis. She also spoke of her experience of visiting the UK unit and of consulting on a case of a young person detained there.
In the psychiatrists’ reports to the court she described the boy has having a psychotic illness. In her evidence she clarified this by saying she believed his psychosis was being mis-represented as it was not attenuated but had reached the threshold for full blown psychosis and was now at the pre-psychotic level. She said while these conditions are on a continuum they require different responses. The court was informed that as it was now too late in the proceedings for her legal representative to challenge Psychiatrists A and D on their evidence.
The court was told the boy was on a combination of three different antipsychotic medicines. Psychiatrist E believed this pharmacological response as not optimal and indeed it was “sub-therapeutic” as he was still symptomatic. In her opinion, the boy needed top-up medications to manage the ‘break-through symptoms’ from his psychosis. She said there were three possible reasons for his break-through symptoms: the dosage was too low, residual withdrawal symptoms from cannabis, or features innate to him. She said the boy and his family were happy for the medication to be increased and the boy had pointed out to her that he had asked for additional medication on a regular basis.
The psychiatrist recommended that the baseline dosage of his primary anti-psychosis medication should be increased gradually. She predicted that a higher dosage of his primary medication would enable a reduction in the other two medication and would better control his symptoms. She estimated that the increased dosage would have a beneficial effect within a few weeks. The psychiatrist said some other jurisdictions treated children with a higher dose than in Ireland and she was not recommending it be increased to as high as that of an adult dosage. The dosage levels were only guidance and “you need to medicate to control his symptoms, which may sometimes mean going outside the guideline dosage”, she said. She indicated that the UK unit was likely to make changes to optimise his medication.
She said the boy was on the “cusp of adulthood”, and that it was unrealistic that his difficulties could be dealt with within six months after a three month assessment period in the UK unit. She queried if it was possible to “keep him locked up to keep him away from drugs when he reached the age of majority”. She raised the concern that he might get worse if forced to go to the UK unit and that it may be counter therapeutic if he had to stay in the UK unit past his 18th birthday, including that he might refuse therapies. The psychologist acknowledged that if he had access to intoxicants it would worsen his prognosis. She said this could be explained to him and he could be given an addiction drug injection to help support abstinence. While this medication was not normally given to those under 18 years she said they needed to weigh the risk against the benefit. This injection is “off label”, in that it was not licensed for use for his particular age group, but she said two of his three antipsychotic drugs were also not licenced for his age group.
She told the court that when they sent a young person to another country evidence was needed as to the outcomes. She said there was little research following up on the outcomes for the young people who had been treated in the UK unit. Legal representatives sought the court’s permission to discuss another case of an Irish young person who had spent over five years in the UK unit. In this case, serious concerns were raised about the conditions experienced by the young person there that would not be permitted under Irish law. The court was also informed of the difficulties experienced in securing the young man’s return to Ireland. It was noted that the first psychiatrist had committed in these proceedings that a bed in Hospital B would be available to the boy if he was placed in the UK unit.
Psychiatrist E stated that it was her belief that all the options within the Irish State had not been exhausted. She was it was premature to recommend his transfer to the UK unit when is was not on optimal dose and was still symptomatic. She told the court that leaving his family, in particular his grandfather and mother “will be a serious rupture for him”. She said “he will feel very lost and alone”. She also told the court that the boy needed a 12 week assessment before leaving?.
She recommended that the boy continue being treated in Hospital A and that his medication be optimised. He would have the benefit of having his family nearby, his accommodation could be improved, for example by putting posters on the wall. She said his room was not as small as described and he should be given access to a tablet. As the boy’s symptoms improved he could be integrated into the general ward or transferred back to a child and adolescent facility. She acknowledged that Hospital A was not suitable saying it is “far from ideal but we need to choose the least worst option”. She said she had treated children on adult wards on many occasions. If the symptoms did not settle down then the UK unit could be looked at, she told the court.
During cross examination four of the psychiatrists disagreed with the finding of Psychiatrist E that the boy was under medicated. The previous week, the court had been informed that a decision had been agreed at a case conference meeting to increase, “titrate” upwards, the boy’s dosage in line with a recommendation from Psychiatrist E. The boy’s medication was not increased. Psychiatrist D said this had not been agreed at the meeting and the record of the meeting was not accurate as the words ‘as appropriate’ were missing from the note taken. This view was also supported by Psychiatrist A and Psychiatrist C. Psychiatrist D said that every decision about medication must be agreed with the patient as any interference with that professional relationship is very risky, and that titration could only be done in a secure location.
Psychiatrist A said he was satisfied that the boy was on the right level of medication and that given the boy’s age he would “not go beyond this”. Psychiatrist B said the boy was being appropriately treated by Hospital A. He said although the boy was “physically large and reaching maturity”, and so needed to be on the minimum effective dosage as young people are more prone to side effects and the maturational process which is in train must be taken into consideration. He commented that the expertise of Psychiatrist E was in adult psychiatry. Psychiatrist C told the court the boy’s medication was currently addressing his symptoms and she did not think his dosage needed to be increased. She said there was limited research on prescribing medication to adolescents and what impact the child’s physical make up had no impact on the effect of medication.
Psychiatrist D who was the child’s treating physician described Psychiatrist E’s recommendation as ‘cavalier’. He said the boy was on the optimal dosage. It was the minimal effective dosage given the boy’s sensitivity to the side-effects to the medication, which included weight gain. The boy was on medication to ameliorate the side effects of the medication. Psychiatrist E responded to this by saying if the boy’s medication was increased you would wait to see if he develops side effects and if he did another option could be to change his medication to something else. Psychiatrist D said you needed to define the criteria for improvement that the medication was seeking to meet: optimising medication required a defined goal.
The question was put to Psychiatrist E that if the boy remained in Hospital A his medication was not likely to be increased as the treating psychiatrist, Psychiatrist D, was not in agreement with her. She said it was a “very sad state if a treating psychiatrist wouldn’t consider increasing medication but instead opts to send him to another country”.
Closing Statements
Senior counsel for the boy said that the particular function of their legal submission was to argue that the boy did not want to go to the UK for treatment. He urged the judge to take into account the boy’s views. He said, under the High Court’s inherent jurisdiction on child care cases, the court was authorises to detain a minor but only for a short term. From his reading of the Supreme Court case law on article 57 a placement must be for a set period: it cannot be open-ended. In the case of this boy, the CFA can only seek an order lasting 10 months until the boy reaches majority. After the end of the ten month period, he said the question might arise whether or not the boy lacked capacity in relation to decision-making. The senior counsel said there was little doubt that the boy was suffering from a mental disorder. However, an order to detain a child, sending him abroad to another jurisdiction where he could be subjected to medication was the most draconian order that the High Court could make.
The implication for the individual and deprivations of liberty were enormous. He said there were three unusual factors in this case. The State’s main expert, Psychiatrist A, changed his mind twice on whether or not the boy should go to the UK unit; the independent expert was not supporting the application; and the UK unit had within a year of this application said it was not an appropriate placement for the boy. In relation to the lack of an appropriate facility in Ireland, he said this case underlined the realisation that “what we have, is what we had 20 years ago”. It would be another two to three years before we have a specialist secure unit available in Ireland.
Senior counsel for the mother believed it was in the boy’s best interests to have his needs met in Ireland and urged the court to direct the provision of the services he requires. The mother was concerned to learn during these proceedings that there was a different professional view on another possible (least worst) option for his care in Ireland. This would avoid the major curtailment of his and his families’ constitutional rights being affected by a transfer to the UK unit. She was concerned that there was uncertainty about the therapeutic value of a forced transfer to the UK unit, it was in a “hope rather than expectation” and that a forced move was inherently counter-therapeutic. The mother was also “very worried” about the evidence given on the conditions in the UK unit and the effect on her son of a move away from the family. She was concerned about the move as it would “take away the immediate oversight of this court and her ability to see him on a day by day basis.” She also expressed a countervailing worry of what would happen to him if he remained here.
However, the mother noted that the boy had indicated to the court that he would do his best. The mother said her interest was his welfare and that she would support whatever order the court made. The senior counsel queried the high burden of evidence needed to satisfy the court had been reached in order to make the transfer to the UK, given doubts about its therapeutic value. She said the court has a duty to direct that the boy’s needs were met in “the least intrusive most proportionate manner”. In addition, she urged the court if ordering his move to the UK to make an order in relation to the frequency and facilitation of family access; and that there be a formal notification system to the court and the mother, on any occasion where the boy was restrained or segregated. Senior counsel said the mother wanted an assurance that his rights would be protected, that a proactive approach and planning would take place to enable him to return to Ireland at earliest possible time.
Views of the young person
The judge arranged to speak to the boy by telephone without any of the other parties present. Their conversation lasted approximately 20 minutes. She did not rely on all aspects of their conversation but noted the key points. She said the boy understood that court proceedings were ongoing and described him as being “very articulate” and well able to speak up. The judge said “he indicated that his preference is to remain in Ireland in close proximity to his family”. During the conversation the boy spoke of his close relationship to his family and of his concern about going to the UK unit and how that would curtail his interaction with his family. He also asked her about his former child placement.
In relation to the UK unit, the boy told her he would be “happy to go if it was in Dublin”. The boy told her he had viewed the UK unit on the internet and was aware of its facilities, he did express some enthusiasm at the opportunities that would be available to him. The judge explained to the boy that his views would be taken into consideration but they were only one of a number of matters taken into account. The boy told the judge that he would “try his best and give it his best shot.”
Decision
Prior to the judge giving her decision, the court was informed that the boy’s condition had deteriorated since the last court date and that the clinicians had requested that the relevant parties liaise with them to agree the time and manner in which the boy would learn of the judge’s decision. The boy had requested that his family, in particular his grandfather, be present when he was being informed of the decision.
The judge delivered her judgment ordering that the boy be detained in the named unit in the UK. The full judgment was published on the website of the court service. The judge read part of her written decision to the court:
“In all the circumstances, the Court has concluded as follows:-
(i) [He] is a vulnerable young person who is habitually resident within the jurisdiction of this Court.
(ii) [He] suffers from a mental disorder of attenuated psychosis.
(iii) [His] current placement in [Hospital A] is untenable in circumstances where it is an adult psychiatry facility and where he is currently only receiving pharmological treatment.
(iv) [His] illness is such that he continues to require a period of compulsory confinement for the purposes of alleviating his symptoms through therapeutic means in order to safeguard his health, safety, and well being.
(v) [He] requires an age appropriate setting in a therapeutic environment where he is safe and secure. It is clear that [he] has exhausted all such facilities within this jurisdiction and that there is no suitable facility available here to provide him with the treatment he requires.
(vi) [His] medical advisors are satisfied that [the UK unit] is a suitable institution for the purposes of providing the necessary treatment, welfare and therapeutic services to [him].
[The young person] and his family have expressed strong reservations against [his] placement in [the UK unit], in circumstances where it will interfere with [his] close family relationships and in particular the close bond that he has with his paternal grandfather.
The burden rests with the applicant in this case to satisfy the Court, on the balance of probabilities, that there is no alternative placement available to [him] within this jurisdiction and that it is in [his] best welfare interests that he be detained in [the UK unit].
Having weighed up all of the evidence in this case and notwithstanding [his] views and that of his family, the Court can only conclude that it is in [his] best interests that he receive the appropriate treatment and therapeutic benefits available at [the UK unit] and that he be detained there for that purpose. The Court reaches that conclusion based on the compelling medical evidence that [he] is a significant danger to both himself and to others and where there is nowhere within this jurisdiction where he could be viably detained. It is regrettable that such a course of action is necessary but to some extent the Court’s hands are tied in circumstances where there is no other suitable and secure facility available within this jurisdiction. The Court’s paramount concern has to be for the welfare of [the young person] and it is for the purpose of safeguarding his welfare and the welfare of others that the Court reaches this decision.
The Court accepts that such a placement outside of the State will result in a diminution in contact with [his] family but this has to be balanced against the fact that there is a serious risk to [his] life and the life of others if he does not receive appropriate assessment and treatment at this time. The Court’s overriding concern must be for [his] best interests and the Court is satisfied that they are best served in granting the Orders sought.”
Concluding comments
Senior counsel for the CFA said all necessary measures would be put in place to effect the transfer. The boy would be taken by government jet and will be accompanied by staff and member of An Garda Siochana to the point of arrival in UK. It might be necessary to administer a sedative during this journey. This court would undertake regular intensive welfare reviews (IWR). In response to a request from senior counsel for the mother, senior counsel for the CFA said there was no need for the court to make an order on notification of any occasions of seclusion or restraint as this is part of the IWRs.
Senior counsel for the boy indicated to the court that he would need to discuss with his client if the boy wished to instruct him to seek lodge an appeal for a stay on the order. The boy’s solicitor had visited the boy in hospital and he had indicated that he would like to consider his options after the decision was made and talk to his grandfather. He requested a stay till tomorrow morning. Senior counsel for the CFA said in a case “as serious as this” if application to stay this order is being made it would need to be made by the end of this week: the case is “too urgent and too serious”. The court was told that there would need to be “solid grounds” if the boy was to lodge an application for a stay and it was likely to be “hard fought” and must be heard by within the next three days. While awaiting the decision on an application for a stay, the judge suggested that certain administrative matters be put in train now unless there was no objection by the other parties. There was no objection.
The case was heard again the following day at which point senior counsel for the boy informed the court that the boy had decided not to make an application to the Court of Appeal.
Progression in out of State care
On foot of the High Court order under Article 56, Brussells II bis., the teenager was admitted to a low secure psychiatric child and adolescent therapeutic centre in the UK. During the Minors’ Review List between January and May 2017, a High Court judge heard how the boy was progressing in the UK unit.
During the first month of his placement in the UK hospital an incident occurred involving 12 teenage residents, which counsel for the CFA described as being “exceptionally violent”. Suggestions were being made in the hospital that a medium to high secure facility could be more appropriate for the boy, that he was now subject to criminal prosecution for the incident that had occurred and his mother wanted assurance that legal advice would be provided to her son. She was also unhappy with the amount of time he had spent in seclusion and that he had reported being hungry during that time.
The court heard the teenage boy was now on a ward with new facilities and had started to engage with his peer group and play football. There were also signs he would engage and that things were getting better.
The following month during the Minors’ Review List, the High Court judge heard that the teenager was starting to look better and put on weight. However there had been a pattern of very serious violent type behaviour in the unit and criminal damage had sometimes occurred. The local police force had been called in on occasion to calm things down. This was an extremely serious mental health case involving a highly vulnerable young man in a highly specialised hospital. Episodes of seclusion had occurred as he could be extremely violent and dangerous at times. He had a severe conduct disorder that could tip into a psychotic episode. His family were continuing to visit him and his mother phoned him every day.
Within one month counsel for the CFA informed the court that there were “signs of green shoots”. The teenager had had a relatively good two weeks and seemed to be with a smaller peer group. “He’s starting to think about himself, how long will I be here, where am I going afterwards, what are the arrangements going to be? That’s a good sign.” He was subject to a particular therapeutic regime.
Within four months of the admission to the UK hospital, the young person was reported to be engaging at a meaningful level not done for a number of years and was in the best place ever regarding private family relations.
The barrister for the GAL reported the teenager to have made significant progress and was now thinking of where he was going towards the end of the year. The GAL believed him to be very appropriately placed and to have made a remarkable improvement.
When the case returned the following week the court heard that an altercation had occurred in the unit but that the teenager had stood back and did not get involved. His quality of conversation had improved and he was developing appropriate interactions with positive peers. There were a lot of positives, said counsel for the CFA, so it was time to bring the case forward.
The judge told the parties that she had visited the hospital the week previously and that she had met with the three Irish residents admitted there during that time. The teenager had spoken quite highly of his level of care there and said that the he should now be assured that matters were being progressed regarding the future.
One week later the court heard that while progress was still good, the teenager needed to be kept motivated, the onward placement was now the issue therefore planning had to start advancing. The young man wanted to return to Ireland on achieving his majority, he wanted to know where he was going and his future needed to be more actively discussed.
