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Cite as: [2015] IEHC 215

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Judgment

Title:	Health Service Executive -v- K.W.
Neutral Citation:	[2015] IEHC 215
High Court Record Number:	2015 459 P
Date of Delivery:	12/03/2015
Court:	High Court
Judgment by:	O'Hanlon J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2015] IEHC 215

THE HIGH COURT

[Record No: 2015/459P]

IN THE MATTER OF K.W., A MINOR WHO MAY BE A VULNERABLE ADULT UPON HER REACHING THE AGE OF MAJORITY ON THE 25th DAY OF JANUARY 2015 AND IN THE MATTER OF AN APPLICATION TO PLACE K.W. IN SECURE ACCOMMODATION IN THE CUSTODY OF THE DIRECTOR OF ST. ANDREW’S HEALTHCARE, BILLING ROAD, NORTHAMPTON, NN1 SDG, U.K. AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT

BETWEEN:

HEALTH SERVICE EXECUTIVE

APPLICANT

AND

K.W

RESPONDENT

AND

L.R AND J.T

NOTICE PARTIES

AND

RAYMOND MCEVOY GUARDIAN AD LITEM ON BEHALF OF K.W.

JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 12th day of March, 2015.

1. Previous proceedings were in being in this jurisdiction entitled “Health Service Executive v. “K.W.”, a minor represented by her guardian ad litem, Raymond McEvoy, Record No 2013/10243P”. By order of Birmingham J. dated the 12th November, 2013, the applicant was authorised to remove the then minor from this jurisdiction and to place her in the Heritage Ward, Lowther Unit, St. Andrew’s Healthcare, England. The High Court of Ireland reviewed the aforesaid order on a periodic basis.

2. During that process, Dr. Dermot Cohen, Consultant Child and Adolescent Psychiatrist and Dr. Susan O’Hanrahan, Child and Adolescent Psychiatrist, were engaged at the request of the High Court to provide an assessment in relation to “K.W.” and their collective view was that there was no alternative placement available for “K.W.” that could provide suitable treatment to her in this jurisdiction.

3. “K.W.” reached the age of majority on the 25th January, 2015.

4. On the 22nd January, 2015, orders were made by consent of the parties including the applicant, the guardian ad litem appointed on behalf of “K.W.”, and her parents, the notice parties, declaring;

(1). That “K.W.” is a citizen of Ireland and domiciled ordinarily resident and habitually resident in Ireland;

(2). That there is sufficient evidence to justify a reasonable belief that “K.W.” may lack the capacity to make an informed decision as to the need for treatment and support in St. Andrew’s, Billing Road, Northampton, England to secure her own personal safety, or evidence that gives cause for concern, or raises a real possibility that “K.W.” may lack such capacity. That in the interim, and pending a determination with respect to her capacity to make decisions regarding her treatment and placement, “K.W.” is a vulnerable person in need of protection pursuant to the inherent jurisdiction of the High Court;

(3). That a determination has yet to be reached with respect to the capacity of “K.W.” to make an informed decision;

(4). That “K.W.”, is in need of specialised care, therapeutic and welfare services, the effective provision of which requires that she be detained temporarily in a secure place;

(5). That “K.W.”, is in need of specialised care, therapeutic and welfare services, that are not currently available in this jurisdiction;

(6). That “K.W.” is at serious risk of causing harm to herself if she does not receive the appropriate treatment. That Article 2 of the European Convention on Human Rights provides that everyone’s right to life shall be protected by law;

(7). That the orders obtained in respect of “K.W.” in the proceedings entitled “Health Service Executive v. “K.W.”, a minor represented by her guardian ad litem, Raymond McEvoy, Record No 2013/10243P” expire and cease to have effect upon her reaching the age of majority on the 25th day of January, 2015, and the orders obtained in these proceedings, pursuant to the inherent jurisdiction of the High Court regarding a vulnerable adult who may lack capacity to have immediate effect upon “K.W.” reaching the age of majority on the 25th day of January, 2015;

(8). That the court takes cognisance of “K.W.’s” rights pursuant to Article 5 of the European Convention on Human Rights and this Court is satisfied that “K.W.” is suffering from a mental disorder of a kind or a degree warranting compulsory detention for a period of time. This Court made the following orders:

(a.) That pursuant to section 27(1) of the Civil Law (Miscellaneous) Provisions Act 2008 and the inherent jurisdiction of the High Court, the publication and broadcast of any matter relating to the proceedings which would or would be likely to identify “K.W.” is prohibited.

(b.) That an adult forensic psychiatrist is authorised to conduct an assessment of “K.W.” after she reaches the age of majority on the 25th day of January, 2015, so as to report to the Court on the issue of her capacity to make decisions regarding her placement and treatment.

(c.) That pursuant to the inherent jurisdiction of the High Court, “K.W.” be detained in the Heritage Ward, Lowther Unit, St. Andrew’s Healthcare, Billing Road, Northampton, where she was placed pursuant to order of this Honourable Court dated the 12th November, 2013 in proceedings entitled “Health Service Executive v. “K.W.”, a minor represented by her guardian ad litem, Raymond McEvoy, Record No. 2013/10243P for the purpose of facilitating an assessment by an adult forensic psychiatrist with respect to the capacity of “K.W.”, and to provide for welfare and therapeutic services including such measures as are necessary to protect “K.W.” and to prevent her from acts of self-harm pending further order of this Court.

(d.) That the Director of St. Andrew’s Healthcare, Billing Road, Northampton, be permitted to detain “K.W.” for the purposes of facilitating an assessment by an adult forensic psychiatrist of the capacity of “K.W.” pending further order of this Court, and for the proposes of providing therapeutic and welfare services including such measures as are necessary to protect “K.W.” and to prevent her from committing acts of self-harm.

(e.) That the assessment of the capacity of “K.W.” by an adult forensic psychiatrist should take place as soon as possible and there should be no delay regarding such an assessment.

(f.) That the Health Service Executive, its servants or agents be permitted to provide any and all consents and permissions required by the Director of St. Andrew’s Healthcare, Billing Road, Northampton arising from the care and maintenance and detention of “K.W.” in St. Andrew’s Healthcare, Billing Road, Northampton pending further order of this Honourable Court.

(g.) That the Health Service Executive, its servants or agents be directed to provide all necessary and/or incidental data, documentation and information in relation to the care, protection and welfare circumstances of “K.W.” a minor to the Director of St. Andrew’s Healthcare, Billing Road, Northampton.

(h.) That the Director of St. Andrew’s Healthcare, Billing Road, Northampton, and all and any of their multidisciplinary team including clinical, care or similar professional and/or ancillary healthcare staff under his or her direction and control be permitted to take all clinically appropriate steps (including the provision of consent or permission for any educational, medical, occupational, psychiatric, psychological or other similar assessment or treatment), that are properly required in accordance with their clinical professional judgment to promote and protect the care, protection and welfare circumstances during her detention there, having regard to the fact that a determination has yet to be made with respect to the capacity of “K.W.”.

(i.) That the Director of St. Andrew’s Healthcare, Billing Road, Northampton, be permitted in the exercise of his or her professional judgment in relation to the continuing care, protection and welfare circumstances of “K.W.”, provide for and regulate an appropriate regime of mobilities for “K.W.” both within and outside St. Andrew’s Healthcare, Billing Road, Northampton, (including where appropriate, mobilities that involve a temporary return to the jurisdiction of this State).

(j.) That the Health Service Executive be granted liberty to join the parents of “K.W.” as notice parties to the within proceedings.

(k.) That Mr. Raymond McEvoy be appointed as a guardian ad litem for “K.W.” for the purposes of these proceedings, in the circumstances where Mr. Raymond McEvoy was appointed as her guardian ad litem in the proceedings entitled “Health Service Executive v. “K.W.”, a minor represented by her guardian ad litem, Raymond McEvoy, Record No 2013/10243P”, and further in the circumstances where there is reasonable cause to believe that the issue of “K.W.’s” capacity has yet to be determined. This order does not seek to prevent “K.W.” from availing of her right to appoint her own legal representative, nor does this order seek to make a determination in relation to her capacity to instruct legal representatives, but rather to provide for her legal representation immediately upon her reaching the age of majority and pending the determination of the issue with respect to her capacity.

(l.) The Health Service Executive to be authorised to put in place all necessary arrangements including such disclosure as is necessary to ensure that this order is recognised in the Courts of England and Wales.

(m.) That the Health Service Executive be directed to take all appropriate steps to ensure that the appointment of a suitable qualified resident within the jurisdiction of England and Wales to act on a continuous basis as an advocate for the interest of “K.W.” while in the custody of the Director of St. Andrew’s Healthcare, Billing Road, Northampton.

(n.) That the Health Service Executive be directed to put in place, in consultation with the Director of St. Andrew’s Healthcare, Billing Road, Northampton, a regime of access (including contact by email, telephone, Skype and visits) for “K.W.” and to discharge the reasonable travel and subsistence costs of any person properly availing of an opportunity for an access visit.

(o.) That the Health Service Executive appoint one of its staff as a liaison officer to commence forthwith contact with “K.W.” and the Director of St. Andrew’s Healthcare, Billing Road, Northampton and the relevant professional staff at St. Andrew’s Healthcare with a view to planning her return to Ireland as soon as is practically possible.

(p.) That the Health Service Executive be granted liberty to give notice of this order to the Director of St. Andrew’s Healthcare, Billing Road, Northampton, by way of email, fax and telephone.

(q.) That the Health Service Executive, its servants or agent be authorised to take all necessary and/or incidental steps in relation to the physical, medical and social welfare of “K.W.”.

5. On that basis, the matter was adjourned, with reserved costs and liberty to apply, and this order was perfected on the 22nd January, 2015.

6. On the 12th February, 2015, further orders were made continuing the suite of orders made on the 22nd January, 2015 in these proceedings until the 19th February, 2015. The applicant, being the Health Service Executive, was authorised to release the opinion of Professor Henry Kennedy to the legal counsel of the parties involved. Moreover, the following ancillary orders were granted;

(1). The applicant was authorised on foot of that order to release the opinion of Professor Kennedy in relation to the respondent, to the legal counsel on behalf of the Health Service Executive and on behalf of the respondent in the U.K.

(2). The applicant was authorised to release the report of Professor Kennedy if same was available by Wednesday the 18th February, 2015, to the legal counsel of the parties involved;

(3). That the applicant was authorised to release the report of Professor Kennedy if same was available by Wednesday the 18th February, 2015, to the legal counsel of the parties involved in the U.K., and the matter was adjourned to Thursday the 18th February, 2015 at 10am. Costs were reserved, and liberty to apply was granted.

The Issues before the Court.
7. On the 25th January, 2015, “K.W.” reached the age of majority. This Court was requested to determine whether “K.W.” has capacity to make decisions regarding her future care and treatment and in turn, if this Court is to so hold that “K.W” holds/lacks capacity, does it have jurisdiction to detain her further at St. Andrew’s to protect her personal rights under Article 40 of the Irish Constitution 1937.

Medical Evidence.
8. Professor Henry Kennedy of the Central Mental Hospital, Dundrum, Dublin, authored a report dated the 16th February, 2015, on behalf of the Health Service Executive and gave comprehensive evidence to this Court. He is a consultant forensic psychiatrist and is Clinical Professor of Forensic Psychiatry at Trinity College Dublin. At para. 3.3 of his report, Professor Kennedy described that “K.W.” was on continuous one to one observation because of the structure of the ward, and at the time of his interview with her, she was on five minute observations recently reduced because she had been 72 hours free of challenging behaviour.

9. At para. 14.7 of his report, Professor Kennedy asked “K.W.” if she thought she had a mental illness. She responded, “I don’t think I have a mental illness with a nature and degree. I don’t think I am unwell. Conduct disorder fits me”.

10. At para. 14.8 of his report and also in his evidence to this Court, Professor Kennedy highlighted that “K.W.” was carefully quoting or paraphrasing parts of the English Mental Health Act concerning “nature and degree” and was carefully arguing against being categorised as having a mental illness as defined under the English Mental Health Act. Professor Kennedy set out that “K.W” had told him that such matters were widely discussed among her peers in the hospital.

11. At para. 14.10 of his report and in his testimony to the Court, Professor Kennedy described “K.W” as indicating that she had not suffered from depression since 2013. Professor Kennedy highlighted to the Court that he used the analogy of asthma to explain to “K.W” about depressive episodes, and about the relapsing and remitting nature of a depressive illness. In describing the remitting nature of depression, he outlined that there could be a comparison with depression and asthma in that one could have asthma even when the symptoms were in remission, and that it would be necessary to look after one’s health to prevent such episodes returning. Professor Kennedy described “K.W.” as being able to understand this analogy and agreeing with it.

12. Professor Kennedy gave evidence (and it is set out at para. 14.15, pg.12. of his report), that “K.W” volunteered in the discussion that she would accept a period of up to three months in a step-down programme, and similar arrangements could be put in place for her to return home in Ireland. “K.W” did not feel that increasing home visits from St. Andrew’s to Ireland would be acceptable to her, as she said it would make matters worse. Professor Kennedy later reports that during his interview with “K.W”, she accepts that she has depression.

13. Professor Kennedy reported that “K.W” asked if he thought she had capacity, and he explained that this would be a matter to be decided by the judge, and would depend not only on her own capacity, but also on the seriousness of the decisions that she would be called on to make, and she accepted this.

14. At para. 15.3 of his report, Professor Kennedy set out “K.W’s” tendency towards rapid fluctuations in mood and mood-congruent thoughts, intentions and decisions, which are her most severely impairing and incapacitating symptoms.

15. In his opinion, Professor Kennedy felt that “K.W.” met the research diagnostic criteria of an “at risk mental state” sometimes referred to as “an ultra high risk state” for developing a psychotic mental illness:

(i). She has a first-degree relative with such a diagnosis. Her mother is said to have an established diagnosis of bi-polar affective disorder.

(ii). She has a decline in real world function of sufficient degree.

(iii). She has a range of near psychotic symptoms including overvalued/quasi-delusional ideas of reference and persecution.

(iv). Professor Kennedy felt that “K.W” probably already meets the diagnostic criteria for bi-polar affective disorder, in that she has had more than one episode of severe depressive disorder in childhood, and that this is sufficient to establish a diagnosis of major depressive disorder. She appears to have had a single episode of anti-depressant induced mania or hypomania with prominent irritability.

(v). Professor Kennedy described “K.W.” as having a long history of intrusive ego-dystonic and ego-syntonic thoughts and impulses of suicide associated with marked secretiveness and a paradoxical sense of self-efficacy. He described this as also a manifestation of the same mental disorder although distinct from mood symptoms. He described that this should be understood in terms of general impairment capacity to reason about her health and welfare and to appreciate the significance of such matters for herself.

(vi). The suicidal thoughts and impulses are ameliorated to a partial extent by “K.W’s” medication and by access to dialectic behaviour therapy and cognitive behaviour therapy.

(vii). At the time of Professor Kennedy’s interview, she was maintained on one to one nursing observation to prevent her from hiding sharp objects, or other means of self-harm.

16. Concerning her long-term risk and prognosis, Professor Kennedy explained the risk of completed suicide due to “K.W’s” mental illness fluctuating rapidly and unpredictably. He felt that matters are compounded by “K.W’s” tendency to conceal her feelings and intention regarding suicide and self-harm. “K.W” felt that her suicidal impulses and deliberate self-harm are reduced when she is engaged in a pathway that she says offers her hope for returning to Ireland within a defined reasonable time span. Professor Kennedy felt there was some evidence for subtle impermanence of social cognition, but he felt that this is not the same as the functional capacity test for consent to treatment or to care and welfare. He considered the functional capacity test from a psychiatric point of view as capacity to understand information relevant to the decision in hand, to use relevant information to reason about the available options comparatively and consequentially to appreciate the importance of the decision for herself, and also “K.W’s” ability to express a decision and to communicate it in a clear way.

17. Professor Kennedy found no impairment of “K.W’s” ability to understand or retain relevant information or to believe the information given.

18. At the time of his interview, Professor Kennedy found that “K.W” was able to reason about the options available to her, and in terms of her reasoning “K.W’s” volunteered that no one would be likely to accept that she would go directly from St. Andrew’s to living in the community in Ireland. Thus, “K.W” communicated that she would accept a transitional placement in an Adult Psychiatric Unit for a limited period prior to going to live with her father and enrolling in school, finding part time work, and providing assistance at a local horse-riding school.

19. “K.W” could appreciate the concept that the more serious the nature of a decision, the more serious the consequences might be, and the more time and care was required to make it, the more help she might require in arriving at a decision. When Professor Kennedy asked “K.W” if she realised the seriousness of her suicidal thoughts, impulses and actions, she was able to recognise that when she was “in a bad place” or “low”, she would see death as a preferable choice for herself, even though “when in a good place”, she does not have such suicidal thoughts and impulses, and enjoys having hope for the future. At the time of the interview, “K.W” was able to recognise her own inability to be consistent, even when using her skills, DBT/CBT skills and coping mechanisms. Professor Kennedy was satisfied that even at the time of his assessment, “K.W.” did not appreciate the benefits of others taking decisions on her behalf, and limiting her freedom to harm herself at such times.

20. Regarding her ability to express a decision and capacity to do so in relation to her mental health and her care treatment and welfare generally, Professor Kennedy noted that “K.W” is inconsistent in her communication of decisions and that she lacks the capacity to express a decision that is the product of understanding relevant information, reasoning, and appreciating the importance of the decision for herself. Such a scenario arises because “K.W’s” mental illness will continue to fluctuate rapidly and unpredictably and in turn, she has been and will continue to be unable to make and communicate clear and consistent decisions.

21. “K.W” is in agreement with Professor Kennedy’s analysis that she is functioning well at present, and is able to express clear preferences, which are reasonable and Professor Kennedy felt that these preferences should be facilitated at the earliest opportunity. However, a period of one to three months should be given to put these preferences into effect.

22. Dr. Boris Iankov had completed a report dated the 9th January, 2015, in which he set out that “K.W.” had been assessed as suitable for transfer to Springhill low secure unit in St. Andrew’s on reaching her eighteenth birthday. He described her mental state deteriorating after a visit home on the 5th November, 2014, after which she made a serious attempt to take her own life. Her explanation was a realisation that she may not be happy in the family home, and she started feeling more suicidal than before. Dr. Iankov’s report describes “K.W’s” diagnosis as mixed disorder of conduct and emotions, and that she continued to require a secure service due to the significant risk to herself (as recent as November 2014) and to others. In his report, Dr. Iankov gave a detailed example of the type of difficulty “K.W” was experiencing in terms of her conduct. In his opinion, Dr. Iankov felt that if “K.W.” were in a less secure environment, the risk would escalate. Dr. Iankov felt that “K.W” is in need of ongoing psychiatric support, psychological input and that on reaching her eighteenth birthday, “K.W” is likely to satisfy the diagnostic criteria for the diagnosis of emotionally unstable personality disorder, borderline type. Dr. Iankov gave a clinical opinion that should “K.W” not be in hospital, the risk of self-harm and suicide were very significant.

23. Dr. Iankov felt that if “K.W” were not in hospital, the chances of suicide or accidental death were very high. Moreover, Dr. Iankov proffered the view that if “K.W” were an informal patient, she would not be able to engage with a treatment plan and would likely seek her own discharge.

24. Dr. Iankov did give oral evidence that, in his opinion, “K.W.” did have capacity.

Applicable Law on the Issue of Capacity.
25. In Fitzpatrick v. F.K [2009] 2 IR 7, Laffoy J. set out the principles which this Court must consider in determining whether an individual has capacity (at para.84):

"(1) There is a presumption that an adult patient has the capacity, that is to say, the cognitive ability, to make a decision to refuse medical treatment, but that presumption can be rebutted.

(2) In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether-

(a) by reason of permanent cognitive impairment, or

(b) temporary factors, for example, factors of the type referred to by Lord Donaldson in In re T. (Adult: refusal of medical treatment) [1993] Fam 95

the test is whether the patient's cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.

(3) The three stage approach to the patient's decision making process adopted in In re C. (Adult: refusal of medical treatment) [1994] 1 W.L.R 290 is a helpful tool in applying that test. The patient's cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient-

(a) has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment,

(b) has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient's death, has not believed that outcome is likely, and

(c) has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.

(4) The treatment information by reference to which the patient's capacity is to be assessed is the information which the clinician is under a duty to impart information as to what is the appropriate treatment, that is to say, what treatment is medically indicated, at the time of the decision and the risk and consequences likely to flow from the choices available to the patient in making the decision.

(5) In assessing capacity it is necessary to distinguish between misunderstanding or misperception of the treatment information in the decision making process (which may sometimes be referred to colloquially as irrationality), on the one hand, and an irrational decision or a decision made for irrational reasons, on the other. The former may be evidence of a lack of capacity. The latter is irrelevant to the assessment.

(6) In assessing capacity, whether at the bedside in a high dependency unit or in court, the assessment must have regard to the gravity of the decision, in terms of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment. In the private law context this means that, in applying the civil law standard of proof, the weight to be attached to the evidence should have regard to the gravity of the decision, whether that is characterised as the necessity for "clear and convincing proof" or an enjoinder that the court "should not draw its conclusions lightly".

26. There is no statutory test for capacity in this jurisdiction. Section 56 of the Mental Health Act 2001 does define "consent" in the context of consenting to treatment under the provision of the Act of 2001. It states as follows:

"In this Part "consent", in relation to a patient, means consent obtained freely without threats or inducements, where-

(a) the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment; and

(b) the consultant psychiatrist has given the patient adequate information, in a form and language that the patient can understand, on the nature, purpose and likely effects of the proposed treatment."

Submissions of the Health Service Executive
27. Counsel for the applicant submits that if this Court is to find that "K.W” lacks capacity, it must consider whether it can and should exercise its discretion to grant an order to detain “K.W” pursuant to the inherent jurisdiction of the High Court, so as to uphold her personal rights as guaranteed under Article 40 of the Irish Constitution 1937.

28. Counsel for the applicant highlights that the Irish Court holds an inherent jurisdiction to grant an order to detain "K.W.". Under Article 40.3.1º and Article 40.3.2º of the Constitution, the Court has a duty to vindicate the personal rights of the citizen as guaranteed under Article 40. The applicant directed the Court to the dicta of O'Dalaigh C.J. in the landmark decision of The State (Quinn) v. Ryan [1965] I.R. 70, where he stated (at pg. 122):

"It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires".

29. In further support of the proposition that the High Court has an obligation to vindicate the personal rights of citizens as guaranteed under the Constitution, the applicant relies on the dicta of Hamilton C.J in D.G. v. Eastern Health Board [1997] 3 IR 511 (at pg. 522):

"It is part of the courts' function to vindicate and defend the rights guaranteed by Article 40, section 3. If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights".

Hamilton C.J goes on to say at (pg. 524):

"The jurisdiction, which I have held, is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare occasions, when the Court is satisfied that it is required, for a short period in the interests of the welfare of the child and there is, at the time, no other suitable facility".

30. In light of the dicta in D.G. v. Eastern Health Board [1997] 3 IR 511 and State (Quinn) v. Ryan [1965] I.R. 70, the applicant proffers that judicial intervention may be necessitated in exceptional circumstances, so as to protect the personal rights of citizens even where such intervention impinges upon the citizen's constitutional right to liberty as guaranteed under Article 40.4.1º of the Constitution. The applicant submits the caveat that the Court can only exercise its inherent jurisdiction in issuing orders to detain in the absence of any statutory scheme that could regulate the aforesaid detention.

31. The Mental Health Act 2001 regulates the circumstances and manner of detention, psychiatric assessment and medical treatment of persons with a mental disorder. However, in circumstances where a person suffers from a mental impairment, which does not come within the scope of the Mental Health Act 2001 for the purposes of involuntary admission, there is, at present, no statutory scheme in force that regulates the circumstances and manner in which therapeutic intervention is imposed.

32. Section 8 of the Mental Health Act 2001 deals with the involuntary admission of persons to approved mental health centres. It provides as follows;

"(1) A person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder.

(2) Nothing in subsection (1) shall be construed as authorising the involuntary admission of a person to an approved centre by reason only of the fact that the person—

(a) is suffering from a personality disorder,

(b) is socially deviant, or

33. On reading section 8(2) of the Act of 2001, it is clear that a person who is suffering from a personality disorder is not detainable for the purposes of section 8(1) of the Act. Thus, the applicant submits that “K.W” can only be detained under the Mental Health Act 2001 in an approved centre pursuant to section 8(1) of the Act of 2001, where she is found to be suffering from a mental disorder upon her reaching the age of majority. The applicant’s position is that there is no appropriate centre in this jurisdiction capable of providing for “K.W’s” best interests. It is submitted by the applicant that “K.W” was detained in St. Andrew’s, and it was planned in or about August 2014, that she would return to this jurisdiction, where she would engage with adult mental health services and be provided with the necessary supports. However, “K.W.’s” situation deteriorated over the month of November 2014, when she engaged in severe self-harming and suicidal behaviour. Dr. Cohen is of the view that there is no suitable alternative placement in this jurisdiction for “K.W.”. Dr. Boris Iankov, the minor’s treating clinician at St. Andrew’s Healthcare, had made a referral to Spring Hills, Low Secure Units, St. Andrew’s. The applicant submits that they wish to detain “K.W” in an appropriate treatment facility, but that can only be done in an approved centre. In those circumstances, the applicant submits that “K.W’s” case falls outside the remit of the Mental Health Act 2001.

34. It is submitted by the applicant that, as "K.W" is a vulnerable adult and falls outside the protective regime of the Mental Health Act 2001, the court should exercise its inherent jurisdiction to detain "K.W" so as to vindicate her personal rights under the Constitution. The applicant directed the Court to the decision of Health Service Executive v J O'B (Unreported, Birmingham J., 3rd March, 2011), where Birmingham J. was requested to invoke the inherent jurisdiction of the High Court to detain a vulnerable adult. The adult in that case suffered from both an intellectual disability and personality disorder. He was placed in a psychiatric facility in England for clinical assessment and treatment under the English Mental Health Act 1983. The HSE had exhausted the clinical regime in England, and petitioned to return the defendant to the Irish jurisdiction. The only hospital capable of dealing with the adult's very complex mental health needs was the Central Mental Hospital, which is an approved institution under the Mental Health Act 2001. The legal problem that arose was that the adult did not suffer from a mental disorder within the meaning of the Mental Health Act 2001. It is submitted by the applicant, that in considering whether to permit the HSE to detain Mr. O'B in a secure setting, Birmingham J. held that although, he would not necessarily go so far as to agree that the Court could grant whatever relief is necessary to safeguard and promote the incapable adult's welfare and interest, he would go so far as to say that where an adult lacks capacity, and where there is a legislative lacuna, so that the adult's best interest cannot be served without intervention by the Court, the Court can exercise its inherent jurisdiction to see that the best interests of the vulnerable adult are vindicated (at para.25):

"However in more limited cases where an adult lacks capacity and where there is a legislative lacuna so that the adult's best interests cannot be served without intervention by the court, I am satisfied that the court has jurisdiction to intervene by analogy with cases like

D.G. v Eastern Health Board

[1997] 3 IR 511 and the several High Court decisions from different judges of the High Court therein referred to."

In discussing the order to detain the aforesaid adult pursuant to the inherent jurisdiction of the High Court, Birmingham J. stated(at para 26- 27):

“There remains for consideration of what structures are necessary by way of safeguard. In the analogous case of children detained by order of the High Court, all such situations are the subject of regular, usually monthly reviews. There is the difference that in children’s cases the hope and expectation is that the detention will be a short one and that after a relatively brief period in secure care the children will be able to move on, whether that be back to their families, to a step down residential facility or to foster placement. Here the expectation is that the requirement for care while detained will be a lengthy one.

The orders proposed involve a serious interference with the right to liberty and that interference, if it is to be contemplated at all, must be reviewed on a regular basis and if it is to be continued will have to be justified on a regular basis. Accordingly, I intend to review the case at an early stage once the respondent has taken up residence in the Central Mental Hospital, Dundrum and thereafter to review the case regularly. Initially, at least, reviews will take place every two months but I will consider readdressing that time table once a routine is established - given that autistic traits are a feature of the case, the establishment and maintenance of a routine is vital."

35. The applicant submits that the approach of Birmingham J. was followed in the subsequent decision of Health Service Executive v V.E (A person of unsound mind, not so found) (Unreported, Feeney J., 26th July, 2012). The applicant submits that in this case, the High Court was requested to make an order to detain pursuant to its inherent jurisdiction notwithstanding that the individual in question was not suffering from a mental disorder, was an adult, and did not consent to the order of his detention. The applicant directs the Court to the following dicta of Feeney J;

"I adopt and follow the approach outlined by Birmingham J. The facts of this case are that Mr. E clearly lacks capacity to a very significant extent and in vital areas directly impacting on his physical and mental health and indeed upon his personal safety..... It is also the case that there is a legislative lacuna and where it truly can be said that Mr. E's well-being and best interest and indeed his very safety and well-being cannot be served without the intervention of this Court. This Court is satisfied that there is an inherent jurisdiction to be used in rare and exceptional cases where the subject of an application can be shown that the person lacks a critical capacity and where the individuals wellbeing cannot be met other than by the intervention of the Court by order. Given that this Court is satisfied that it has an inherent jurisdiction, it follows that such jurisdiction has no precise or defined parameter and cannot be delineated other than by reference to previous decisions of the Court and by recognition that the Orders must not only be for a minimum required time but also must be the subject of ongoing and rigorous review. The power availed of by this Court is as ample as the Constitution requires but always subject to the other provisions of the Constitution”.

Feeney J. continues as follows:

"The Court only exercises its jurisdiction as a last resort and has allowed time to pass if any order other than detention was possible. This is not just a case of the Court deciding on balance that the order is required for Mr. E's own good but rather that absent an order, Mr. E's physical and mental wellbeing will be seriously damaged, that he will be placed in a position that he would be at risk of injury or damage. Mr. E continues to enjoy individual rights and the court duly acknowledges his dignity. But where his very wellbeing and safety is a at risk and where he cannot, on the evidence, make a real decision about his own safety and accommodation and has no capacity to do so, the legal protection of Mr. E and the vindication of his rights requires the Court, on the facts of this case, to invoke its inherent jurisdiction and provide him with protection."

36. The applicant also directs the Court to Article 5(1)(e) of the European Convention on Human Rights, which states:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure described by law;

(e) The lawful detention of persons for the prevention of the spreading of infectious diseases of person of unsound mind, alcoholic or drug addicts or vagrants".

37. The applicant claims that if this Court finds that "K.W" lacks capacity, a subsequent detention order based on that finding would not be in violation of "K.W's" right to liberty under the Convention. In support of this proposition, the applicant relies on the case of Winterwerp v Netherlands (24th October, 1979, App No. 6301/73, (1979-80) 2 E.H.R.R. 387), where the applicant, who had been compulsorily detained under the relevant Dutch mental health legislation, complained that their rights under article 5 and article 6 of the Convention were violated. The Court held that where a person of unsound mind is deprived of their liberty, there must be no question of arbitrariness, and there must be clear medical evidence supporting the detention:

"The Commission likewise stresses that there must be no element of arbitrariness; the conclusion it draws is that no one may be confined as 'a person of unsound mind' in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalization.....

The Court fully agrees with this line of reasoning. In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority- that is, a true mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinements depends upon the persistence of such a disorder".

38. The applicant also relies on the decision of Hutchison Reid v. U.K. (Application No. 50272/99 (2003) 37 EHRR 9), where the European Court of Human Rights held that in order for a signatory state to comply with article 5(1) of the Convention, the detention in issue must take place "in accordance with a procedure prescribed by "law" and "be lawful". In considering this procedural concept, the Court held(at para.46);

"In order to comply with Art.5(1) of the Convention, the detention in issue must take place “in accordance with a procedure prescribed by law” and be “lawful”. The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness."

The Court went on to identify three minimum conditions that must be satisfied for a person of unsound mind to be detained (at para.47):

"For the purposes of Art.5(1)(e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: first, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.”

39. The applicant submits that should this Court find that “K.W.” has capacity, then the Court does not have jurisdiction to authorise her continued detention in the U.K. However, the applicant submits that the Court has jurisdiction to place a stay on any order authorising her release from St. Andrew’s Health Care, Billing Road, Northampton for a short period of time to allow the Health Service Executive to make the necessary arrangements to allow for “K.W’s” travel home to Ireland, and to provide psychiatric and medical care for her, which is to include an inpatient stay in an Irish hospital. In support of the proposition that this Court has jurisdiction to exercise a stay on any prospective order granting “K.W’s” immediate release from St. Andrew’s, the applicant relies on the decision of N v Health Service Executive [2006] 4 IR 374, where the Supreme Court concluded that the interest and welfare of an infant, who was the subject matter of the relevant proceedings, required that she be returned to the custody of her natural parents. Murray C.J. held that a successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention, with no further order being necessary. However, the Court took into account the fact that there were special circumstances in the case namely, the welfare of an infant of tender years to be taken into account. On this issue, the applicant directs the Court to the dicta of Murray C.J., where he held (at pg.471, para.5):

“In my view the court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect her rights and welfare pending effect being given to the substantive order of the court”.

In a concurring judgment, Hardiman J. agreed with the approach of Murray C.J, and held(at pg.534-535, para. 187-188):

“187. I regard as wholly disingenuous the submission made on behalf of the second and third respondents that because the proceedings were brought under Article 40.4.2, the powers available to the court were limited to the stark alternatives of refusing relief altogether, or directing an immediate, unprepared for, transfer of custody. The very starkness of these alternatives, it was argued, was an argument for refusing relief altogether.

188. I agree with the form of order proposed by the Chief Justice in this case. I am satisfied, for the reasons which he gives, that there is ample power to make an order in that form. I have no doubt that the power of the court is not constrained in the extraordinary fashion contended for by the second and third respondents. I am quite satisfied that the welfare of the child, in the long term and in the short term, as well the rights and responsibilities of the parties to this litigation, require that the order proposed should be made”.

40. The applicant submits that the Court’s jurisidiction to grant the aforementioned stay has been extended to cases that concern adults with mental disabilities. In particular, the applicant relies on the decision of J.H. v Clinical Director of Cavan General Hospital [2007] 4 IR 242, where Clarke J. in reference to N v Health Service Executive [2006] 4 IR 374 and to decision of the Supreme Court in D.G. v Eastern Health Board [1997] 3 IR 511 stated (at pg. 263, para. 56-57);

“While both of those cases were concerned with under age persons, I see no reason in principle why that jurisprudence should not equally apply, in an appropriate case, to persons under a mental disability. The underlying logic of the approach of the Supreme Court in both those cases was that the normal rule (

i.e

., immediate release) might not be appropriate in all circumstances involving persons whose detention was, at least in significant part, designed for their own good. A similar situation arises in the case of involuntary patients.

57. I am therefore satisfied that the court has a jurisdiction to make an ancillary order of the type identified by the Supreme Court in N. v. Health Service Executive [2006] IESC 60, [2006] 4 IR 374 as to how best to give effect to the decision of the court. I was, therefore, persuaded that, in all the circumstances of this case, it was appropriate to put in place arrangements that would facilitate appropriate procedures being put in place to seek to invoke the new process set out in the Act of 2001 for the purposes of seeking a fresh detention order in respect of the applicant under the provisions of that Act. In coming to that view, I was principally motivated by the fact that no argument was addressed to the court, nor was there any evidence before the court, which sought to contradict the contention that the applicant was in need of treatment in an institution. Obviously very different considerations would apply in circumstances where a court was persuaded that there was a difficulty with the conclusions reached concerning the mental status of the patient concerned. There was no such difficulty in this case.”

In that case, Clarke J. stressed that a significant consideration was whether it was clear that the applicant was in need of appropriate treatment or, indeed whether the objective necessity for the continued detention of the patient was not established. In pursuance of this jurisdiction, Clarke J. placed a short stay of approximately seven hours on the order for release.

41. Counsel for the applicant submits that on the 6th March, 2015, the mirror orders in the Courts of England and Wales were extended to the 17th April, 2015. However, the extension of such orders is dependent on a determination by this Court that “K.W” lacks capacity. If the Court finds that “K.W” does have capacity, the applicant submits that the mirror orders before the Courts of England and Wales lapse immediately. In light of this prospect, the applicant submits that this Court should exercise its jurisdiction to place a stay on the orders to allow for a phased transition of “K.W” to Ireland. The applicant petitions that the Court should give an indicative judgment regarding the issue of capacity of “K.W.”, rather than making a final determination in the immediate future, so as to allow the HSE to make adequate arrangements for the safe return of “K.W” to Ireland and in turn, make provisions for her continued care in a planned and safe manner.

Submissions of “K.W.”.
42. Counsel for the respondent submits that in this case, the primary issue that concerns this Court is whether “K.W” lacks capacity in regard to making decisions on her mental health condition and the required treatments.

43. The respondent submits that “K.W.” enjoys the presumption of capacity and it is for the applicant to establish, on the balance of probabilities, that “K.W” lacks capacity.

44. It was proffered by counsel for the respondent that if this Court finds that “K.W” has capacity, it cannot exercise its inherent jurisdiction to detain “K.W” so as to protect her personal rights. In support of this proposition, counsel for the respondent relies on the decision of Health Service Executive v. V.E (Unreported, High Court, 26th July, 2012), where Feeney J. addressed the issue of the inherent jurisdiction being predicated on a finding that a vulnerable adult lacked capacity (at pg.43 of the transcript of the judgment);

“In it he was directly addressing the issue of capacity which is the issue central to the Court in having an inherent jurisdiction because absent that determination of a person not having capacity, that jurisdiction would not and could not arise”.

45. It is submitted by the respondent that the medical evidence in this case does not support a finding that “K.W” lacks capacity. Rather, it is argued that the medical evidence admitted in this case reflects that “K.W” holds the requisite capacity for making decisions regarding her mental health condition and the necessary treatments for same. In particular, the respondent directs the Court to Professor Kennedy’s report and claims that it concludes that “K.W’s” risks would be reduced by a return to Ireland. The respondent directed the Court to Professor Kennedy’s report where he states (at pg 16, para. 15.4 of his report dated the 16th February, 2015):

“K.W says (although this may not be completely reliable) that her risks would be reduced by a return to Ireland. On balance this is likely to be correct”.

46. The respondent submits that as there is no evidence to support a finding that “K.W.” lacks capacity, and if the court finds that she does have capacity, such a finding would be a reviewable error of law as it would follow that in applying the correct test of capacity, it could not be concluded that “K.W” lacks capacity.

47. On determining the issue of capacity, the respondent submits that the assessment of capacity is time specific and in turn, the submission that “K.W’s” capacity fluctuates (and thus results in her capacity being incomplete) ought to be rejected by the Court, as during the period in which capacity was assessed; “K.W’s” capacity did not fluctuate.

48. The respondent submits that in the absence of adequate proof that “K.W” lacks capacity, the Court must treat her as capable. In turn, the respondent claims that the Court has no power to continue to detain “K.W” and cannot use the inherent jurisdiction to order such a detention. The respondent submits that even if the Court did have such a power, the exercise of same would not be appropriate, as a continued detention of “K.W” would not be proportionate to the need to protect her best interests. Rather, the evidence reflects that “K.W’s” best interests can be protected by a return to this jurisdiction, where she would register as a voluntary patient at an Irish hospital.

49. However, the respondent does submit that although “K.W” would not be detainable under the Mental Health Act 2001, if at some point on her return, “K.W’s” capacity fluctuates and deteriorates to such an extent that she would lack capacity, an application can be made to the Court and in turn, the Court can intervene and exercise its inherent jurisdiction to detain her so as to protect her constitutional right to life.

Submissions on behalf of the Guardian ad litem.
50. The position of the guardian ad litem is that “K.W” has expressed her desire to return to Ireland. However, there is no appropriate facility in the State, which could provide appropriate treatment and guarantee her safety with regard to her to mental health condition and current presentation. It is proffered by the guardian that “K.W” is still ill and requires treatment.

51. The guardian submits that “K.W” falls within the category of a vulnerable person as her personal rights under Article 40 of the Irish Constitution 1937 and her right to life under article 2 of the European Convention of Human Rights are endangered. Thus, in light of “K.W’s” current presentation, this Court should exercise its inherent jurisdiction so that “K.W” can continue to receive the appropriate treatment at St. Andrew’s. The guardian relies on the decision of Re. F (Adult: Courts Jurisdiction) [2000] 3 W.L.R 1740, to support the proposition that where there is a risk of possible harm in respect of an adult who lacks capacity to make decision as to his or her own future, the doctrine of necessity permits the Court to exercise its inherent jurisdiction to intervene and buttress the best interests of that person. On this point, the guardian also directed the Court to the decision of Re PS (An Adult) [2007] EWHC 623(Fam), where Mumby J. held (at para. 14-15):

“There is no doubt that since its rediscovery by the House of Lords, the inherent jurisdiction has evolved, that it continues to evolve and that it must indeed continue to evolve if the court is properly to comply with its obligations under, for example, Articles 5 and 8 of the Convention: see

Re S (Adult Patient) (Inherent Jurisdiction: Family Life)

[2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [52]. As

Dame Elizabeth Butler-Sloss P said in Re Local Authority (Inquiry: Restraint on Publication)

[2003] EWHC 2746 (Fam), [2004] 1 FLR 541 , at para [96], in an important passage to which Mr O'Brien appropriately drew attention:

“It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so.”

Singer J made precisely the same point when he said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8], that the jurisdiction is “sufficiently flexible … to evolve in accordance with social needs and social values.”

15. I said much the same thing in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [45], where I expressed the view that: “New problems will generate new demands and produce new remedies”.

52. The respondent also relies on the decision of Health Service Executive v J O'B (Unreported, Birmingham J, 3rd March, 2011) to proffer the position that the Court has an inherent jurisdiction to intervene to protect “K.W” as she presents as a vulnerable adult. However, this Court does note that in the cases of Re PS (An Adult), Re. F (Adult: Courts Jurisdiction) and H.S.E v. J O'B, it seems the Courts’ finding of “vulnerability” was predicated upon a finding of incapacity.

53. In this case, “K.W.” has sought complete confidentiality over her medical reports and her interactions with her treating clinicians. “K.W” had informed the guardian that she did not want her parents to receive the medical, social work or the guardian ad litem reports, which were prepared for the High Court. It was submitted by the guardian that if this Court was to find that “K.W” has capacity, and issued an order for her return to Ireland, “K.W’s” aforesaid privacy rights would have to be impinged, so that her father would know that she presents a significant risk to her own life. Such an impingement is necessary so that “J.T” (“K.W’s” father) can monitor “K.W.” effectively.

Position of the Notice Parties.
54. Both “J.T” (“K.W’s” father) and “L.R” (“K.W’s” mother) have engaged with these proceedings from the outset. They should be commended for their concern. It was submitted that both parents are not in an immediate position to facilitate “K.W” living with them, especially in light of the serious risks that “K.W” poses. However, it was relayed to the Court that both parents are hopeful that “K.W” would transition back to this jurisdiction, but that such a transition should be a safe and sustainable.

55. It is submitted on behalf of both notice parties that if this Court is to find that “K.W” has capacity and is to returned to this jurisdiction, they should receive adequate information from “K.W’s” clinicians so that both notice parties can engage in an effective care plan for “K.W.”.

Conclusion
56. This Court has considered the evidence and submissions of all parties involved in this case.

57. This Court accepts the evidence of Professor Kennedy to the extent that, at the time of the interview with “K.W”, he was satisfied that she did not appreciate the benefits of others taking decisions on her behalf, and limiting her freedom to harm herself at such times as set out in his report (at para. 7). In particular, this is where “K.W” was able to recognise that when she is in a “bad place”, she sees death as a preferable choice for herself, even though when in a “good place”, she does not have such suicidal thoughts or impulses, and enjoys having hope for the future.

58. Regarding category eight titled “Expressing a decision” in Professor Kennedy’s report, Professor Kennedy found “K.W” to be inconsistent in her communication of decisions. He felt that for the reasons set out above, “K.W” lacked the capacity to express a decision that is the product of understanding relevant information, reasoning, and appreciating the importance of the decision for herself. Professor Kennedy stressed that this was because her mental illness will continue to fluctuate rapidly and unpredictably, and she has been and will continue to be unable to make and communicate clear and consistent decisions.

59. This Court notes that in the case of X.Y [2013] I.L.R.M 305, Birmingham J. made a determination with respect to the capacity of “K.W.”. That case concerned “K.W.” in a separate set of proceedings, where the Health Service Executive sought declarations that the taking of a blood sample from “K.W.” was authorised by the provisions of the Mental Heath Act 2001. At that time, “K.W.” was detained in Ireland under s. 23 of the Act of 2001 and was under the care of Dr. Dermot Cohen. In his judgment (At para. 119), Birmingham J. found that that “X.Y” lacked the capacity to refuse to the consent to the taking of blood samples. The issue of capacity had also been addressed by Dr. Cohen. He sought, but had been unable, in the absence of co-operation from “X.Y” to carry out a formal assessment. Nonetheless, Dr. Cohen expressed his belief that there are certain areas where she displays a good understanding of her difficulties, and other areas where she does not. He believed that she had an understanding of the reason why a blood test would be necessary. Moreover, Dr. Cohen indicated that he believed that her refusal to comply with treatment could be linked with her wish to die, which still persists, albeit less than previously. In addition, he claimed that she sees her refusal to consent to treatment as leading to sickness, and to her eventual death. However, Dr. Cohen did express his belief that “K.W” holds a simplistic view of the possible outcomes in that she would not die as this “would only happen to old people”. Dr. Cohen was of the view that “K.W’s” incapacity overall was significantly influenced by her low mood. The Court accepts of course that any assessment of capacity is time specific and issue specific, but nonetheless her decision to refuse to consent to the taking of a blood sample in 2013 is of note to the Court in its determination regarding her capacity.

60. Dr. John O’Mahony gave evidence in this case regarding any proposed plan for “K.W” if she were to be returned to Ireland. Moreover, Dr. O’Mahony expressed the view that thus far, “K.W’s” treatment at St. Andrew’s had not altered her suicidal ideations, and that “K.W’s” condition could be life long. However, Dr. O’Mahony expressed the view that it was possible that “K.W” might recover at some stage. For the avoidance of doubt although the court did read, with the agreement of the parties, a second report of her treating psychiatrist, the decision is not based on same, nor is it based on the letter of Dr. O’Mahony.

61. This Court also considers the reports and opinions of “K.W’s” guardian ad litem, Mr. McEvoy. In his report dated the 24th February, 2014 (at para. 2c), Mr Mc Evoy outlines that as a result of her mental health problems, “K.W.” has been unable to make good judgments about her ongoing treatment and care, and has wanted to leave hospital and return to the community, even when she has been deemed to be at high risk of serious self-harm. Her acceptance of the severity of her psychiatric difficulties is limited, in the opinion of her guardian. She is in denial of her own struggles to keep herself safe, and there is the attendant high risk of her seriously self-harming. It is the guardian’s belief that “K.W.” lacks capacity to make sound decisions by virtue of her mental health issues, and not due to any cognitive or intellectual functioning deficit on her part.

62. This Court considers the criterion that the Court must consider in determining whether an individual has capacity as set out by Laffoy J. in Fitzpatrick v. F.K [2009] 2 IR 7 (as set out in para. 25 of this judgment). Particular consideration is given to factor three of the legal test for capacity, as set out by Laffoy J. in Fitzpatrick v. F.K [2009] 2 IR 7 which states:

“The three stage approach to the patient's decision making process adopted in

In re C. (Adult: refusal of medical treatment)

[1994] 1 W.L.R 290 is a helpful tool in applying that test. The patient's cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient-

(a) has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment,

(c) has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision”.

63. Regarding sub-factor (a) above, (Comprehending and retaining the information and possible consequences) this is relevant to Professor Kennedy’s report (para. 8, p. 16) and his evidence, where he notes an inconsistency in “K.W.’s” communication of decisions. Moreover, Professor Kennedy found “K.W” lacked the capacity to express a decision that is the product of understanding relevant information, reasoning and appreciating the importance of the decision for herself. He found that this was because “K.W’s” mental illness would continue to fluctuate rapidly and unpredictably and that she has been and will continue to be unable to make and communicate clear and consistent decisions.

64. It is the view of this Court that in regard to sub-factors (b) (belief as to the treatment information) and (c) (weighing the treatment information), these factors have to be viewed in the light of Professor Kennedy’s finding that “K.W.” did not appreciate the benefits of others taking decisions on her behalf and limiting her freedom to harm herself at such time as set out in his report (para. 7 p. 16).

65. This Court holds that “K.W.” lacks capacity, which goes to her failure to appreciate the seriousness of her conditions as set out by Professor Kennedy. In addition, “K.W” lacks the capacity to appreciate the benefits of others taking decisions on her own behalf and limiting her freedom to harm herself at such times as are necessary. “K.W” further lacks capacity to express a decision that is the product of understanding relevant information, reasoning and appreciating the importance of the decision for herself. This Court hopes that over time “K.W’s” situation will improve.

66. The Court has considered the submissions of “K.W” extensively but to suggest that a finding of capacity would be appropriate in these circumstances with the possibility of invoking the inherent jurisdiction of this Court at a later date, would be inappropriate in light of facts of this exceptional case. On analysing and balancing the evidence proffered in this case, there is a high probability that fatal damage could occur which could result in “K.W’s” lost of life.

67. As the Court has found that “K.W” lacks capacity in terms of making material decisions regarding her medical treatment and therapy, this Court concludes that "K.W’s" best interest and personal rights under Article 40 of the Irish Constitution 1937 are endangered and in turn, the intervention of the Court is necessitated. Thus, this Court considers its obligations under Article 40.3.1º and Article 40.3.2º of the Constitution to vindicate "K.W’s" personal rights as guaranteed under Article 40 (see The State (Quinn) v. Ryan [1965] I.R. 70 at pg.122).

68. “K.W.” is a young adult suffering from a mental disorder, which is not sectionable under the Mental Health legislation in this jurisdiction. “K.W” is now an adult. The Court has a duty to intervene to vindicate “K.W’s” rights in a proportionate way.

69. In terms of the habitual residence of “K.W.”, this Court accepts that she is an Irish citizen and is of Irish domicile. “K.W.” was temporarily placed in St. Andrew’s for the specific purpose of assessment and treatment with ongoing intensive welfare reviews conducted by this Court on a periodic basis. This Court deems that the habitual residence of “K.W.” lies in Ireland, and did not change at any stage. “K.W” is and remains habitually resident in this jurisdiction. This Court has also considered “K.W.’s” wish to return and reside in Ireland. Under Article 40.3.1º of the Irish Constitution 1937, this Court notes its obligation to vindicate “K.W.’s” constitutional right to reside in the State as an Irish citizen.

70. This Court rejects the submissions of the guardian ad litem that “K.W.” should remain in St. Andrew’s Healthcare as being somewhat disproportionate in that the therapies afforded there, although applied with the very best intentions, have not succeeded in altering her current presentation. This finding was referred to by Dr. O’Mahony. A proportionate response therefore requires that “K.W” be allowed, in accordance with her wishes, to return to this jurisdiction. The transitioning of this patient must be done in a safe and secure way, and it is for that reason, it is deemed appropriate that such a transition happen within a three month time span, but it could happen earlier if the medical teams treating her agree on such a course (i.e. St Andrew’s Healthcare taking this decision with the Clinical Director of Ennis General Hospital, Dr O’Mahony.)

71. In turn, this Court exercises its inherent jurisdiction to detain “K.W.” involuntarily as a psychiatric patient in an adult psychiatric ward under the care of the Clinical Director of Ennis General Hospital, Co. Clare. However, this Court takes the view that over the next three months, “K.W” should transition safely back to Ireland and to ensure safe transitioning, she should be afforded the opportunity to avail of such therapeutic treatment and medication as advised by her treating psychiatrist in St. Andrew’s Healthcare. This decision is taken to protect her welfare and vindicate her personal rights where she is not in a position to protect herself and remains at high risk of suicide and/or self harm, which has been clearly set out by the medical practitioners involved in her care and treatment.

72. “K.W.” as a minor had requested privacy in terms of her parents not having sight of her medical reports. “K.W” is now an adult and has rights of privacy in relation to her medical condition, and this Court upholds those rights and vindicates them. To date, “K.W’s” parents agreed not to have medical information or reports. This was at “K.W’s request because of her rights of privacy, and because she did not want discussion of her medical condition. It is the view of this Court that at the discretion of the Clinical Director of Ennis General Hospital following her transition, a broad outline of her progress and treatment can be disclosed to her parents. Any prospective outline of “K.W’s” progress is not to contain any medical reports. Such an arrangement is only reasonable given that her parents are concerned about her wellbeing and progress.

73. This Court therefore grants the suite of orders sought by the applicant and will hear submissions from counsel in relation to such further orders as required.

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