BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Health Service Executive v A (Approved) [2025] IEHC 278 (07 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC278.html
Cite as: [2025] IEHC 278

[New search] [Printable PDF version] [Help]

 

THE HIGH COURT

[2025] IEHC 278

Record no:  H.MCA.2024.0000180

 

               IN THE MATTER OF [A] AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT AND IN THE MATTER OF AN APPLICATION TO RENEW INTERIM ORDERS PERMITTING DETENTION AND CARE IN A PLACEMENT TO WHICH A FAMILY MEMBER IS OPPOSED

 

BETWEEN

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

 

[A] 

RESPONDENT

 

 

 


Ex Tempore ruling of Mr. Justice Mark Heslin delivered on the 7th day of May 2025

 

1.            This application concerns a young adult born in 2001. His diagnoses are set out in the reporting, and on any analysis he is someone with complex needs - having a diagnosis of autism spectrum disorder, as well as moderate intellectual disability and attention deficit hyperactivity disorder, as well as having limited verbal communication. 

 

2.      In terms of background, last November, there were very serious concerns for the respondent, who was then residing with his mother, as well as very serious concerns for the health and safety of his mother, given the challenges arising from the respondent's presentation, which included assaultive behaviours. These challenges had given rise to two respite placements.  When the matter was ultimately before this Court, on 28th of November, [A]'s mother, through her then counsel, Dr. Craven (then instructed by Pol O'Murchu Solicitors) made no objection to the making of orders which, in substance, have continued to this date, having also been reviewed in January. 

 

3.      Her attitude altered subsequent to the making of the initial orders and that objection was 'flagged' in December and, again, on 29th of January. Notwithstanding the change of mind on the part of the respondent's mother, there was no material change in the needs of the respondent and, in light of the evidence, the orders initially made on 28th of November, were continued on the basis that they remained necessary and proportionate.

 

4.      Since January, there have been certain changes in the 'landscape' in that, on the 26th of March, orders were made authorizing the guardian ad litem, Mr. McGrath, to apply for and receive the respondent's PPS number; and on the 2nd of April, an order was made permitting Pol O'Murchu, Solicitors to come 'off record', for the respondent and his mother in these proceedings.

 

5.      In terms of the evidence before the Court today, Ms. Katherine Kelleher, solicitor for the HSE, swore an affidavit on the 6th of May, exhibiting a report of the 2nd of May, authored by Dr. [B], a Consultant Psychiatrist, which report is to be read with Dr. [B]'s very detailed report of 21st of January, which is also exhibited. Dr. [B] met with [A] on the 3rd of January in the placement. She carried out a functional assessment of capacity, as a result of which she concluded that the respondent lacks capacity to make decisions as regards his health, his welfare needs and his finances. In her view, [A] is someone who does not understand the risk which leaving his current placement, in an unplanned manner, would pose. He does not perceive the danger, for example, of running out in front of traffic or the risk of physical injury. He would not understand the implications of his actions and she opines that he may, for example, walk through a door without concern. At paragraph 7.40 of that detailed report, Dr. [B] stated her belief that the respondent requires detention orders to regularise any placement and to ensure that his human rights are upheld. At paragraph 7.41, she confirmed her belief that without restrictive orders, it is not possible to guard the respondent against harm, nor for his bodily integrity and safety to be maintained by a placement. And whilst opining that the respondent has the disabilities I've mentioned, she made clear that even though he has a mental disorder within the meaning of section 3 [of the Mental Health Act 2001], there is no advantage to admission to an approved centre, which would not meet his needs, given that it would not be an autism-friendly placement. 

 

6.      Turning to her most recent report, Dr. [B] makes clear that her views as to capacity have not changed. She states and I quote: "As of the 3rd of January, I formed the opinion that the respondent lacked capacity in a number of areas. The deficits in capacity are as a consequence of his moderate intellectual disability and a diagnosis of autism. Both of these diagnoses are present throughout life and are not amendable to amelioration. They do not have a relapsing and remitting course. As it is only a few months since the respondent was last examined, I would be firmly of the opinion that it is improbable his capacity will have changed since my examination. He will continue to have deficits in his understanding of and use of information and these impairments are lifelong. He has limited understanding of vocabulary. He associates certain words with certain actions. But it is the association that he has learned, rather than the meaning of the word. In my opinion, he would not have regained capacity and, as such, my report of the 21st of January would still be an accurate description of his abilities in this regard." 

 

7.      And I also note the contents of a 2nd of May update from Mr. [C] of the HSE Disability Service, which confirms that the applicant is satisfied that [A]'s overall wellbeing, in the current placement, operated by the [named] Group is as it should be.

 

8.      It is clear that there are challenges remaining, including self‑harm and assaultive behaviours, but the frequency of same have significantly reduced. That 'comes through' from the weekly updates which the placement provides to Mr. [C] and which Ms. Kelleher exhibits.  These give a comprehensive setting-out, on a chronological basis, of information including: the respondent's presentation and behaviours; supports, including his behaviour support plan; and activities provided for him - and these include daily trips to various locations, making food with staff, swimming, walks in the garden, enjoying the foot‑spa, spending time in the sensory room, enjoying music, engaging in water play and enjoying his bath routine. 

 

9.      Details were also given in relation to any significant incidents, as well as the contact between the respondent and family, in particular, his mother which continues to be supported. The staff support video calls with his mother. It is clear that challenges remain in relation to this communication and communication from the respondent's mother to the placement. By way of just a single example, it was reported that the respondent's mother regards her son as "kidnapped the HSE for malicious reasons". I pause to say that, regardless of how sincerely Ms. [D] may hold this view, it is not evidence-based. It is not based in objective reality. There is not a shred of evidence to support it. And it is simply not credible.

 

10.   I also have the benefit of an affidavit sworn on the 6th of May, by Mr. McGrath, in his role as Guardian at litem, and in the manner he avers, Mr. McGrath has engaged Independent Social Worker, Ms. [E], who attended various multi‑disciplinary team meetings with staff from the placement and with the HSE. Ms. [E] also has ongoing contact with both the HSE and Mr. [F], as well as Mr. [G], the person in charge of the placement. Ms. [E] met with [A] on the 7th of April and, most recently, on the 1st of May.  In section 4 of her Report, she sets out her observations, in relation to the care being provided to [A], whom she found to be relaxed, calm and at ease with staff. At section 5, she details her meeting with staff of the placement, and this includes a reference to the difficulties which continue to be encountered as a result of calls from [A]'s mother, who is reported to encourage him to leave the placement and say things such as he should "pack bags". 

 

11.   It is further stated that while arrangements have been made for face‑to‑face contact between the respondent and his mother, these attempts have not been successful and this is because Ms. [D] is said to have indicated that she is not willing to attend a meeting with [A] unless he is going to come home to her care.

 

12.   From paragraph 5.8 and at paragraph 8.1, Ms. [E] emphasises the importance of the current placement providing access to a multi‑disciplinary team, such as speech and language therapy, occupational therapy, psychology and psychiatry, along with the behaviour support plan. I note rather, the [placement's] occupational therapy manager visited [A] and met with staff on 26th March and an O.T. assessment is awaited. A dietician carried out a review on the 28th of March and a speech and language therapy review is awaited. 

 

13.   As regards the independent view offered by Ms. [E], she is satisfied the placement is suitable.  And she states, inter alia, that "All of the reports highlight the importance of understanding just how long it takes for [A] to be comfortable with new people. And, bearing this in mind, it is highly likely that a more informed assessment of [A]'s needs will emerge over time, as he gets to know the staff in the house and staff on the MDT. I remain fully in support of the Court order which allows for [A] to be cared for by [named care-provider] and for him to continue to reside at the placement. Dr. [B] has previously raised the issue of Ms. [D] presenting as being traumatised. With that in mind, it remains my recommendation that Ms. [D] give consideration to accessing a suitably qualified therapeutic support for herself. I am aware that she has referenced in her contact with HSE staff that she is suffering PTSD. This has to be something she is willing to undertake of her own accord. The issue of contact for [A] with Ms. [D], has not been possible to date and the responsibility for this does seem to lie with Ms. [D]" 

 

14.   Later, Ms. [E] states the HSE have made attempts to facilitate this contact but it has been unsuccessful to date and she concludes her report by stating that her offer to meet with Ms. [D] remains. 

 

15.   As Guardian at litem, Mr. McGrath endorses the recommendations made by Ms. [E].  In the manner averred at paragraph 5 of his affidavit, he travelled to [the placement] and met with [A] on the 1st of May and it was immediately apparent to Mr. McGrath that [A] is: "comfortable in his surroundings and that there was a nurturing, caring and safe environment within the home, with the staff on duty attuned to his needs."

 

16.   Mr. McGrath contrasts this, I think very appropriately, with the chaotic and challenging position prior to the admission to the placement. He describes the respondent as benefitting from the calm environment within the placement and he makes a point of commending the HSE for their commitment and diligence in pursuing this outcome for [A]. 

 

17.   In the manner averred, Mr. McGrath has continued to try and speak directly with Ms. [D] and, indeed, to arrange a face‑to‑face meeting with her, but to no avail. He refers, however, to a 'voice mail' message left out of hours, on the 14th of April, which communicates Ms. [D]'s views and these can be summarised as follows, in circumstances where Ms. [D] has chosen not to appear, today, and there is no criticism in that. She contends that there is a co‑ordinated effort to exclude her from decisions regarding [A]. She contends that she never agreed to any residential placement for him. She references concerns regarding injuries sustained in a previous placement. She accuses the HSE and those involved in [A]'s care of acting against his best interests. She questioned the impartiality of those funded by the HSE, including the Guardian at litem himself. She reiterated her belief, that she is best placed to advocate for [A]. She claims there is an attempt to, as she puts it, 'sign away' her son, and she threatened legal action. She refers to alleged mistreatment and alleges lack of accountability for safeguarding concerns; and concluded her message by warning that she is closely monitoring the situation and those involved in [A]'s wellbeing.

 

18.   As regards the independent view of the guardian at litem, the following averments are made by Mr. McGrath: "I say that despite Ms. [A]'s assertions, the HSE have, in my view made every effort between to sustain and promote a relationship between Ms. [D] and [A]. Ms. [D] however is unable to engage in any meaningful way with professionals regarding [A]'s needs and thus he is deprived of the very input that Ms. [D] asserts is absent and further compromised in the maintenance of his relationship with his mother, when she will not attend meetings, for the specific purpose of planning contact between them or avail of opportunities where provided, to have such direct contact and he concludes by averring, I say and believe that the existing arrangements for [A] are necessary, appropriate and proportionate and clearly benefitting him" and Mr McGrath suggests that the current orders should continue, subject to a review in some six‑months time. 

 

19.   I also received, yesterday, a supplemental affidavit, from Ms. Kelleher, Solicitor for the HSE, and she avers that following a number of complaints made against the placement, the health information and quality authority, or 'HIQA', undertook an unannounced visit. A copy of the report, regarding the unannounced visit which took place on the 5th of March has been received and is exhibited.  Given the concerns which the respondent's mother appears to have in relation to the quality of care provided in the placement, it is appropriate to quote from internal page 5 of the HIQA report which states inter alia:

 

"This unannounced inspection was carried out as part of the ongoing regulatory monitoring of the centre. The centre is a one‑storey house located close to a large town, with many amenities and services, such as shops and eateries. The centre has the capacity for the maximum of one resident and at the time of the inspection there was one resident living there.

Later:

"The resident was happy and safe and receiving person‑centred care and support, that was in line with their individual needs and wishes, to maintain a good quality of life.

 

Later still,

"The Inspector observed the resident taking part in activities at home and leaving the centre to engage in activities in the local community" and examples are given.

 

"The Resident was supported to stay in touch with important people in their lives and a plan was place for this. Overall the Inspector found high levels of compliance with the regulations and that appropriate arrangements were in place, to ensure that the Resident was being supported in line with their assessed needs and personal preferences, to have a good quality of life".

 

And it is sufficient to say that, in each and every one of the Regulations, the placement was found to be compliant. These include: staffing; training and staff development; governance and management; communication; premises; individual assessment and personal plan; positive behavioural support; protection and Resident's rights. 

 

20.   This further underscores that, irrespective of how sincerely the respondent's mother takes a different view, the respondent is safe, well cared‑for, all his needs are met and this is a placement where - to borrow from Mr. McGrath's submission - the respondent is thriving and comfortable.

 

21.   It is, on a human level, a matter of great regret that Ms. [D] would appear to be in such distress.  The consequences of that, for her and for her son, are equally regrettable and one could have nothing but sympathy for her. However, taking full account of her views, a consideration of the entirety of the evidence makes clear that to continue the current orders, reflected in the draft, helpfully provided today by [the applicant's counsel] Mr. Smith SC is necessary and constitutes a proportionate response by this Court, to vindicate and protect the fundamental rights of this very vulnerable citizen - someone who lacks the capacity to make relevant decisions, including, decisions regarding his health and welfare and who lacks insight into the risks arising from his condition and presentation.

 

22.   Given the nature of the orders it is, of course, essential that they continue to be the subject of periodic and intensive review. That is to ensure that they go as far as, but no further than, is necessary to vindicate this young man's rights. For the benefit of the respondent's mother, I think it is appropriate to say also that these remain interim orders only. There has been no decision by this Court as to a long‑term future and nothing is 'set in stone'. It will be recalled that the Independent Social Worker, Ms. [E], recently highlighted the importance of understanding how long it takes for the respondent to be comfortable with new people and she highlights that it is likely that a more informed assessment of his needs will emerge over time, as he gets to know the relevant staff in the placement and in the MDT. 

 

23.   These are the reasons for today's decision and a summary of the evidence on which it is based and we might turn, then, to a specific date for review [12th November].

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010