Neutral Citation: [2015] IEHC 741
THE HIGH COURT
[2015 No. 459 P]
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 ACCOMODATION IN THE CUSTODY OF THE DIRECTOR OF SAINT ANDREWS HEALTHCARE, BILLING ROAD, NORTHAMPTON, NN1 SDG, UK
AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
BETWEEN
HEALTH SERVICE EXECUTIVE
APPLICANT
RESPONDENT
NOTICE PARTIES
AND
RAYMOND MCEVOY
GUARDIAN AD LITEM ON BEHALF OF K.W.
JUDGMENT (Ex tempore) of Mr. Justice Noonan delivered on the 7th day of July, 2015.
1. The respondent in these proceedings (“KW”) attained her majority on the 25th of January, 2015. She has a troubled psychiatric history. There is consensus among the many psychiatrists who have examined her that she suffers from emotionally unstable personality disorder, borderline type. This is a diagnosis primarily appropriate to an adult. As a minor child, KW was described as suffering from a mixed disorder of conduct and emotion.
2. In KW’s case, the cardinal feature of her illness is that it gives rise to sudden and unpredictable episodes of self-harm, up to and including serious attempts to take her own life. The long background to KW’s psychiatric history is not particularly germane to this judgment, suffice it to say that for the past four years or thereabouts, with the exception of a three-month period, KW has been involuntarily detained in various mental health institutions here and in the United Kingdom.
3. Detention orders were made over the past number of years by this Court, initially pursuant to its jurisdiction regarding at risk children. On the 12th November, 2013, an Order was granted by Birmingham J., authorising the applicant (“the HSE”) to remove KW from this jurisdiction and place her in a secure mental health facility at St. Andrews in Northampton, England. The reason for this was that the applicant’s then treating psychiatrists were of the view at that time that there was no placement available for KW that could provide suitable treatment to her in this jurisdiction.
4. KW has remained in St. Andrews since then, almost 20 months ago. During that period, she appears to have made some, although limited, progress. This has been somewhat inhibited as a result of KW’s refusal to engage, or engage fully with dialectical behaviour therapy (“DBT”), considered by all relevant experts to be the gold standard for treatment of her condition.
5. One of the primary reasons for her removal to St. Andrews was the availability of this treatment and the security of the environment there. In that latter regard, the conditions obtaining at St. Andrews have been described in some detail to me and they are, by necessity, extremely restrictive on the patients, depending upon what level of risk they present at any particular time. There is a grading system from 1 to 6 for the level of risk with 1 being the highest risk. KW has, in the recent past, been at levels 1 and 2 from time to time although is currently at level 4.
6. During KW’s minority, her case was periodically reviewed by the Court and as her 18th birthday approached, the issue arose as to what was to happen to KW given that she could no longer be subject to the Court’s jurisdiction regarding children. A particular difficulty arises in KW’s case by virtue of the fact that as an adult, her underlying diagnosis is that of personality disorder but that is expressly excluded from the ambit of the Mental Health Act 2001 for the purposes of involuntary detention.
7. Accordingly, if KW is a capacitous adult, there is no statutory power in this jurisdiction to involuntarily detain her. The position in the United Kingdom is different, as there, involuntary detention can occur in cases of personality disorder. Although personality disorder is recognised by international norms as a form of mental illness, a conscious decision was made by the Oireachtas to exclude it as a mental disorder which could give rise to an involuntary admission to a mental health facility.
8. Whilst of course the Court cannot speculate as to why this view was taken, nor is it relevant to do so, it does appear from the expert evidence I have heard that the view taken in that regard in this jurisdiction is broadly consistent with that taken in most jurisdictions, with the exception of England and Wales, thus, in Scotland and Northern Ireland, the approach is similar to here.
9. Shortly prior to KW’s 18th birthday, the issue arose as to her capacity and whether or not the Court might have a continuing inherent jurisdiction to detain KW involuntarily in order to vindicate her constitutional rights and, in particular, that right which has primacy over all others, her right to life.
10. The issue gives rise to very complex legal questions. The first issue arising is whether, as a matter of fact, KW has the capacity in law to make decisions regarding her care and treatment. If she lacks such capacity, the next issue for consideration is whether the Court has an inherent jurisdiction to detain her in her own best interests and there are a number of High Court decisions that support that proposition, although it has never been determined by an appellate court.
11. If, on the other hand, KW has the capacity to make decisions of the kind referred to, then a further and much more difficult issue arises as to whether or not the Court has any jurisdiction to detain a capacitous but vulnerable adult for their own protection and safety. There is certainly some English authority which might support such proposition, but little or none in this jurisdiction so that the Court would be entering uncharted waters in this respect.
12. Arising from the foregoing, the HSE instituted proceedings three days before KW’s 18th birthday seeking, inter alia, a declaration as to her capacity and an order detaining her in St. Andrews pending that determination. A plenary summons was issued on 22nd January, 2015, together with a notice of motion of the same date, and an urgent application was made to the Court that day.
13. An interlocutory order was made by O’Hanlon J. on the same day pending an early hearing of the matter. That hearing took place over a number of days in February and March of this year. Oral evidence was given by Dr. Boris Iankov, KW’s treating psychiatrist in St. Andrews. Evidence was also given by Prof. Harry Kennedy, the well-known consultant psychiatrist who travelled to England and examined KW on the 11th February, 2015. Evidence was also given by Dr. John O’Mahoney, consultant psychiatrist, and the HSE’s Executive Clinical Director of Midwest Mental Health Service. Dr. O’Mahoney also travelled to St. Andrews and interviewed KW.
14. O’Hanlon J. delivered her judgment on the 12th March, 2015. In the course of the judgment, the Court identified the issues to be determined as being whether KW had capacity to make decisions regarding her future care and treatment, and in turn, if the Court held that KW holds or lacks capacity, did it have jurisdiction to detain her further at St. Andrews to protect her personal rights under Article 40 of the Constitution of Ireland.
15. In the course of her judgment, O’Hanlon J. analysed the applicable law on the issue of capacity and evidence before the Court in that regard. Having done so, the Court came to the following conclusions (at para. 65):
“This Court holds that “K.W.” lacks capacity, which goes to her failure to appreciate the seriousness of her condition as set out by Prof. 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.”
16. The Court went on to conclude that the foregoing finding rendered it necessary for the Court to intervene in order to vindicate KW’s constitutional rights, but that such intervention should be in a proportionate way. Such proportionate response requires that KW be allowed, in accordance with her wishes, to return to this jurisdiction. The Court went on to say (at para. 70):
“…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.”
17. The Court then proceeded to conclude that KW should be returned to Ireland within three months and then involuntarily detained in an adult psychiatric ward under the care of the Clinical Director of Ennis General Hospital, County Clare. On foot of the foregoing judgment, the Court made a formal order on the 26th March, 2015 declaring that KW lacks the capacity to make decisions regarding her care, medical treatment, and therapy, and that she be returned to Ireland as soon as possible, but not later than 12th June, 2015. Thereafter, she was to be detained in Ennis subject to periodic review by the Court. On the 8th April, 2015, the HSE appealed the order of the High Court to the Court of Appeal in one respect only, that was against the order directing that KW be detained involuntarily at Ennis.
18. On 30th April, 2015, a serious incident occurred when KW secretly took a quantity of washing powder from the laundry area in St. Andrews with the intention of ingesting it so as to cause her death. However, she appears to have thought better of it and admitted what she had done to her English solicitor, Ms. Vaughn, so that disaster was averted.
19. On the same day, O’Hanlon J. directed that a care plan be drawn up by the HSE and that was done. This was sent to Dr. Iankov who wrote on the 7th May, 2015 to express his concerns about it in the light of the recent incident involving KW. Arising from this, and consultation between Dr. Iankov and Dr. O’Mahoney, Dr. O’Mahoney was moved to write on the 13th May, 2015 expressing his extreme concern regarding KW’s proposed repatriation, and in light of what had happened, felt that he had to withdraw the care plan and stated categorically that the Midwest Mental Health Service was not in a position to provide a safe service to meet the particular requirements of KW.
20. In the penultimate paragraph of his letter, Dr. O’Mahoney said:
“I have spoken with Dr. Iankov today and he is unequivocal in his opinion that KW requires treatment in a specialist personality disorder women’s treatment centre to ensure her safety, and given the recent information I share his opinion. There is no such facility in this country.”
21. This correspondence was followed the next day, the 14th May, 2015, by the issuing of the motion which is now before this Court. In that notice of motion, the HSE sought an order that is was no longer obliged to return KW to the jurisdiction, having regard to the new medical advice. It also sought an order continuing KW’s detention at St. Andrews. In short therefore, the HSE’s application to the Court was that it should effectively reverse and discharge the order previously made on the 26th March. Also, on the 14th May, 2015, O’Hanlon J. delivered a further judgment refusing the HSE’s application for a stay on the order of the 26th March, 2015.
22. On the next day, the 15th May, the motion came on for hearing before O’Hanlon J. where no order was made in respect of it. On the 4th of June, 2015, the matter came before the Court of Appeal by way of an appeal from the refusal of the High Court to grant a stay. The HSE now also sought to amend its grounds of appeal so as to appeal against the substantive part of the High Court order directing that KW be returned to Ireland. In its order of the 4th June, 2015, the Court of Appeal granted leave to amend the notice of appeal and placed a stay on the return of KW to this jurisdiction pending further order of the High Court on foot of the hearing of the notice of motion dated 14th May, which is now before this Court.
23. As of today’s date, I have been informed by counsel for the HSE, Mr. O’Leary SC, that his client is no longer seeking the relief claimed in the notice of motion but rather on an agreed basis, an order for the immediate return of KW to this jurisdiction as a voluntary patient.
24. When the hearing of this motion commenced before me, I expressed my concern to the parties as to the basis upon which I was being asked, in effect, to reverse the order of another High Court Judge made barely three months ago, particularly in circumstances where it appeared to me that there had been no material change in any of the circumstances that led to the making of that order.
25. However, since I made those observations, significant new evidence has emerged in this case which was not available to O’Hanlon J. at the time she reached her decision, which was necessarily interlocutory in nature. Accordingly, I am now satisfied having heard that evidence, that I am entitled to consider matters afresh, this application being, like those before it, also an interlocutory application. In that regard I note the decision of Lord Denning MR in Purcell v. Trigell Ltd. [1970] 3 All E.R. 671 and also the decision of Quirke J. in Lismore Homes v. Bank of Ireland Finance [2006] IEHC 212 which support the proposition that the Court is entitled to review interlocutory orders or vary them, as necessary.
26. I have thus heard up to date evidence from Dr. Iankov, from KW herself, from Dr. O’Mahoney, from Prof. Brendan Kelly, and new evidence from Prof. Kennedy. Prof. Kelly is, like Prof. Kennedy, an eminent consultant psychiatrist, and at the suggestion of the Guardian Ad Litem, Mr. McEvoy, I directed that Prof. Kelly should travel to St. Andrews to interview and assess KW with a view to preparing an independent report for the assistance of the Court, Prof. Kelly having already indicated his willingness to do so.
27. I believe this to have been a very worthwhile step as I found Prof. Kelly’s evidence of great assistance. Dr. Iankov gave evidence consistent with the various reports he has already provided in this case and they speak for themselves. Prof. Kennedy and Prof. Kelly have also provided detailed reports and I do not intend to refer to them at length, but rather to highlight parts of their evidence which appear to me to be of particular importance to the issues arising in this case.
28. Dr. Iankov was clear in his evidence, his view throughout has been that KW has capacity in terms of decisions she makes. He said that she is not intellectually impaired in any way. While she continues to refuse to engage in DBT, she fully understands the consequences. He said that the view he had formed in January, 2015 that KW was able to understand, retain, and weigh in the balance information that is given to her, and communicate her decisions remains the case. During most of the time, she is perfectly capable of making decisions.
29. He felt that the uncertainty surrounding the current litigation is massively detrimental to KW’s health, a view shared by all concerned. He was very clear in his evidence that the risk to KW’s life could not be managed safely in the community. With regard to coming home for a family wedding this week, he felt that he could not support this and it would de-stabilise KW. However, it seems to me that at least part of the reason for that destabilisation is the fact that KW might have to return to St. Andrews afterwards.
30. Prof. Kelly felt there were primarily two issues to be addressed in this case. First, the personality disorder and second, the effects of quite prolonged, involuntary detention on KW. It was his view that the custody and detention of persons with personality disorder is very rarely therapeutic. He said it can be disempowering to detain people with such disorders in hospital, as it may hinder them developing their own coping mechanisms. Accordingly, he said that in Ireland, we tend to reserve admission of such patients for very short periods, during times of high crisis. He described it as being a sort of “pit stop” for a few days until an acute crisis passes. He emphasised the fact that the approach in England is significantly different from that in Ireland.
31. Of course, the legislation in England is fundamentally different because involuntary detention is available in relation to persons with personality disorder. He said that in this jurisdiction, in dealing with such patients, the psychiatric services engage in more positive risk taking. He felt that fundamentally KW has capacity, although there are occasions when she loses capacity when acutely distressed.
32. In that respect, he took a slightly different approach Prof. Kennedy. Prof. Kelly said that most of the time, KW has capacity to make decisions about her care and treatment, apart from during the unpredictable and generally short crises that are a feature of borderline personality disorder. However, he was of the view that her preference expressed consistently over time and clearly and with reasoning and understanding, and an appreciation, is entirely capacitous in KW’s case, and that the fluctuations in capacity are short and the subject of a sort of intense emotional turmoil for short periods.
33. Prof. Kelly’s view was that KW has not progressed significantly in the detained environment and his personal opinion was that such an environment is not helpful for somebody with personality disorder. Indeed, this confirms Dr. O’Mahoney’s view, who said that despite a very lengthy detention in a specialist unit in the UK, the risk to KW has not significantly ameliorated.
34. Prof. Kelly said that in England, there is a much more custodial approach to personality disorder. He felt however that there are long-term downsides to detention, specifically a distortion of normal human behaviour and reward patterns. The longer KW remains in a detained environment, the more difficult it will be for her to transition to community living. However, he felt that a new approach was likely to result in significant new benefit for KW. He believed that when she says she will engage with DBT, she means it, at least at the time she says it. He took considerable comfort from the fact that KW had been able to refrain from self-harm for a period of six to eight months, which he felt was a remarkable achievement, given the difficulties and frustrations of the environment in which she finds herself in St. Andrews.
35. He said that that bodes well for the future, in circumstances where many people with borderline personality disorder self-harm every week and, indeed, every day. Fundamentally, however, Prof. Kelly’s opinion was that the current treatment has not produced sufficient benefit in his view to justify the continued deprivation of liberty.
36. Prof. Kelly indicated that he had made some preliminary inquiries as to the availability of appropriate treatment for KW in this jurisdiction, and had identified an organisation called Nua Healthcare with patient facilities in the Midlands which he felt might provide an appropriate treatment regime for KW. They have dedicated in-patient female adult facilities and provide DBT therapy onsite.
37. He cautioned however, that irrespective of what environment KW was in, even in St. Andrews, there were still significant risks but this was part and parcel of her condition and could not be avoided. However, he felt that it was important not to lose sight of the fact that successful therapeutic intervention necessarily involves a degree of risk, and this risk could never be fully predicted or even evaluated.
38. He was of the view that KW’s wish to return to Ireland was entirely capacitous. It was not to be assumed that being an inpatient of itself offered safety, or the elimination of the risk, and any perceived benefit in terms of short-term risk may well be outweighed by the long-term risks stemming from the disempowerment inherent in prolonged and indefinite detention.
39. He emphasised the importance of clarity in KW’s future care plan as a matter of urgency. Ongoing uncertainty was the cause of significant distress to KW and consequent risk of relapse.
40. Finally, in a second supplemental report dealing with the issue of KW’s return to Ireland for her father’s wedding, Prof. Kelly offered the view that from a therapeutic perspective, there is much to recommend KW’s attendance at the wedding, particularly if this was to be a part of a transitional process of repatriating KW. This would be, potentially, of clinical benefit for KW’s mental and social wellbeing, especially given a long period of inpatient hospitalisation. It was also, in his opinion, important to bear in mind KW’s own wishes in the matter as a generally capacitous adult, and the potential importance of such a trip as one important and empowering step in the transitional process.
41. Prof. Kennedy also travelled to St. Andrews on the day after Prof. Kelly in order to provide an updated report supplemental to those he had previously provided to the Court. His evidence, which was extremely helpful and was broadly to similar effect as that of Prof. Kelly. In particular, he was of the view that the best way forward now was to find a means of returning KW to Ireland. He recognised that such return would involve taking a certain amount of risk, of measured therapeutic risk, but when you find yourself stuck, as he said, which he felt was the situation now, you would have to think of a way forward. He agreed with Prof. Kelly that when he saw KW on the 21st June, 2015, she had capacity. He emphasised that there was an element of fragility in that capacity and understood the difficulty for the Court in dealing with vulnerability, as distinct from outright capacity in the legal context.
42. He felt that in the context of the formation of KW’s adult personality, the window between the ages of 18 and 24 or 25 is very important. He said that, if, during that time, she was not at least for some of the time living in the community, her chances of ever being truly independent were much impaired. He felt that her continued detention in St. Andrews was becoming counterproductive but at the end of the day, the risk still existed and the difficulty is in finding the proper balance between risk and therapeutic progression.
43. It would appear that the main point of difference between Prof. Kelly and Prof. Kennedy is that Prof. Kennedy continued to be of the view that KW’s decision making capacity is to a mild or moderate degree impaired. Her condition was notable for the marked fluctuation in capacity that arose. He felt her prognosis was guarded and less favourable than for most other young people in her position. He likened her dependence in the future on the assistance of others to that of a person with mild to moderate intellectual disability or autism spectrum disorder. He felt that although she had neither of those disabilities, her capacity to function in the real world was comparable to persons suffering from same. Despite that opinion, Prof. Kennedy remained of the view that KW’s best interests would now be served by a return to Ireland.
44. In addition to the foregoing medical evidence, I also had the opportunity of hearing evidence from KW herself. She impressed me as a very bright, articulate and intelligent young woman of whom any parent would be justly proud. She has many hopes and dreams for the future and I have no doubt that she has the potential to fulfil them. She has all of her young life ahead of her and every reason to live it to the full. Her adolescent years have been tragically blighted by an insidious illness which put her very life at risk. With the love and support of her family and the tireless attention of the healthcare professionals charged with her care, she has survived to adulthood. As she matures, I believe that she is coming to realise that the means of defeating her illness are within her own grasp.
45. I fervently hope that she will now embrace those means and, in particular, participate as fully and completely as possible in DBT on her return to Ireland. The expert evidence I have heard is absolutely unequivocal that this treatment, although perhaps challenging, and not always pleasant for the patient, provides by far the best chance of a recovery. Although she has been reluctant to fully engage with it in the past, I take on board Dr. O’Mahoney’s remarks that a teenager’s job is to protest against authority and that in refusing the treatment, KW may well be simply like any other normal teenager. As I have said, hopefully that will now change as she matures.
46. It seems to me that having regard to the preponderance of the medical evidence I have now heard in this case, KW presents at this point in time as an adult who has capacity, in the legal sense, to make decisions about her own care and treatment and hopefully that will remain the case in the future.
47. Having regard to that finding, and the legal authorities opened to me by counsel, I am satisfied that the Court does not possess continuing jurisdiction to involuntarily detain KW on an ongoing and indefinite basis. However, I am satisfied on the authorities that the Court has a jurisdiction to transition KW from a detained environment to being a voluntary patient. Accordingly, in N v. HSE [2006] 4 IR 374, Murray C.J. said as follows (at paras. 1-5):
“In this case there are special circumstances, namely the welfare of a infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this court pursuant to Article 40 ... 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.”
48. The approach of Murray C.J. in that case was endorsed by Denham C.J. in the case of F.X. v. Clinical Director of the Central Mental Hospital [2014] IESC 1. In that case, Denham C.J. said as follows (at para. 77):
“In coming to this view, Murray C.J. referred to the constitutional duty upon the courts to, as far as practicable, vindicate the personal rights of the child. He held that where there is a transfer of custody of the infant, such as in N. v. HSE, the interests of the child required that the transfer takes place “in a manner and circumstances which, as far as practicable, protects that welfare so that any adverse effects on the child are obviated or minimised.” In the interests of the child, therefore, this Court in N. v. HSE made an interim order authorising the child to remain in the custody of the second and third named respondents.”
49. She went on to say (at para. 79):
“There is no provision in the Constitution for a stay. Consequently, any order, such as was made in N. v. HSE, is made in the process of controlling the release, for the purpose of protecting the person who is incapable of protecting themselves.”
50. These authorities satisfy me that in discharging the previous order of the Court herein, made without the benefit of all the evidence that has now been made available, the Court is entitled and obliged to ensure that the discharge occurs in a controlled and safe manner so that KW’s Constitutional rights, and above all, her right to life, are properly and fully vindicated.
51. In making this order, I recognise that from the perspective of KW’s health and welfare it is vitally important that this litigation and the uncertainty surrounding its outcome should be brought to an end at the earliest possible moment. The evidence has clearly established that its continuation is very undesirable for KW, and is having a significantly detrimental effect on her health. For that reason, I have endeavoured to facilitate the parties as much as possible in terms of reaching a common view as to how KW’s best interests might be served. I believe that approach has borne fruit to the extent that a degree of broad consensus has emerged in terms of a future care plan for KW.
52. However, the imminent marriage of KW’s father and the importance of determining whether KW may or may not be in a position to attend has meant that it would not be in KW’s interest to further defer a final decision on this matter. KW has expressed to me in writing and in her oral evidence, her earnest desire to attend the wedding and the importance for her of doing so. I consider this to be the informed decision of a capacitous adult to which I am obliged to give effect insofar as possible.
53. Accordingly, I propose to discharge the previous order of the Court made on the 26th March and to substitute an order directing the staff at St. Andrews to return KW to this jurisdiction tomorrow, the 8th July, 2015. To that end, I will direct that St. Andrews continue to detain KW until such time as her care and custody are handed over to the HSE staff at Cork Airport tomorrow when she will thereafter become a voluntary patient. Arrangements should then be made to transfer KW to Ennis psychiatric hospital overnight and to provide staff to accompany her to the wedding.
54. I will allow the parties a short opportunity to consider this judgment and advise me of what arrangements have been agreed before I proceed to make a formal order in that regard.
