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Judgment
Title:
HSE -v- BS
Neutral Citation:
[2017] IEDC 18
Date of Delivery:
10/25/2017
Court:
District Court
Judgment by:
Horgan P.
Status:
Approved

2017 IEDC 18
Judgement of the District Court
HEALTH SERVICE EXECUTIVE
APPLICANT
BS
RESPONDENT
In the matter of “A” child

Order to discharge an Order under Section 25 (6) Mental Health Act 2001 pursuant to Section 25 (14) Mental Health Act 2001


Introduction
1. This decision deals with an application to discharge an Involuntary Detention Order which had been made pursuant to Section 25 (6) of the Mental Health Act 2001 in another District Court area. The jurisdiction to hear the application in Dublin Metropolitan District Court arose by virtue of the fact that the child the subject of the order was, at the date of the application to discharge that order, involuntarily detained in an approved Child and Mental Health facility within the functional area of the Dublin Metropolitan District. This decision has been prepared in an anonymised form in order to protect the identity of the child with whom it is concerned or her family.

Background
2. The Involuntary Detention Order was made on the application of the Health Service Executive (HSE) in accordance with Section 25(1) of the 2001 Act to the first Court. That Court heard evidence from a Consultant Psychiatrist that the child was suffering from a mental disorder within the meaning of Section 3(1)(a) and (b) of the 2001 Act and required treatment which she was unlikely to receive unless the Order was made.

3. The Court also had the benefit of a detailed three page medical opinion which concluded with the opinion of a Locum Consultant Psychiatrist that the young woman was “undergoing immense stress due to on-going issues”. She had received the news of her “advanced pregnancy three days ago, resulting in multiple concerns regarding her mental health and strong suicidal tendencies with recent attempts to follow through with suicidal plans” The consultant psychiatrist concluded his Report by stating:

        “In my opinion, the risk of self-harm/suicide can be managed and minimised by proper treatment of her mental health condition in a safe environment at an appropriate inpatient facility with appropriate counselling services around pregnancy, averting the need for termination of pregnancy which I believe is not the solution of all her problems at this stage”.
4. The first Court having considered the evidence made an Order detaining the child for a period of 14 days and the Order also included the following terms:
        1. CH to be appointed as Guardian Ad Litem for [the child];

        2. MD to be appointed as Guardian Ad Litem for the unborn child, having regard to the recent judgement of Humphries J in I.R.M v Minister for Justice [2016] IEHC 478;

        3. The HSE to provide the Respondent mother with appropriate levels of access with the child, having regard to the medical treatment/clinical constraints if any being provided to the child.

        4. While in the care of the HSE the child receives such antenatal treatment and pregnancy support services (including appropriate counselling services) as may be appropriate;

        5. Any appeal to the Circuit Court shall not operate to stay this order.

        6. The court is not joining the child as a party to these proceedings at this time.

        7. HSE legal services to notify the Attorney General immediately of this order and lifts the in camera rule for the purpose;

        8. That treatment in an approved centre is to include, inter alia the taking of blood samples and the administration of intra-venous fluids in an approved centre or acute hospital.

        9. The Court authorises the assisted admission of the child pursuant to s.13 of the Mental Health Act, 2001, if deemed clinically necessary and appropriate;

5 The Order of the First Court also set out that in making the aforesaid orders it had regard to the rights and duties of the respondent under the Constitution or otherwise, and directed legal representation be provided to the respondent. The court measured the costs of the solicitor for the mother in the sum of €750 plus VAT to be paid by the HSE. The first Court also gave due consideration to the welfare and best interests of the child concerned. However, having regard to the evidence tendered regarding the urgency of the application and in circumstances where the child was suffering from a mental disorder, the first Court determined that it was not practicable at the date of application to ascertain the wishes of the child, but directed the appointment of a Guardian Ad Litem for the Child to do so. The First court also directed the HSE to pay the costs of the interpreter.

4. The first Court made the Order for a period of 14 days.

5. An Ex Parte Application was brought before this Court by the Guardian Ad Litem some six days after the first court order seeking an abridgement of time for service on all parties of Notice of an Application to Discharge the Detention Order pursuant to Order 39 Rule 5(5) of the Rules of the District Court and the Court made an such abridgment under the District Court Rules returnable for the following day;

Application to Discharge Involuntary Detention Order
6. When the substantive application to discharge the involuntary Detention Order made by the first Court six days after the Order was made, the HSE, the Guardian Ad Litem for the child, the Guardian Ad Litem for the unborn child and the mother were fully represented by solicitor, counsel and senior counsel. Counsel for the Attorney General also appeared as she was on notice of the Application before the Court.

7. The sole issue before the District Court was an application to Discharge the Order made under Section 25 (6) of the Mental Health Act 2001 in accordance with Section 25(14) of the 2001 Act. Section 25(14) provides that the provisions of sections 21, 22, 24 to 35, 37 and 47 of the Child Care Act, 1991, shall apply to proceedings under the Mental Health Act, in the context of applications which relate to a child. Section 22 of the Child Care Act, 1991 provides:

        “22.—The court, of its own motion or on the application of any person, may—

        (a) vary or discharge a care order or a supervision order,

        (b) vary or discharge any condition or direction attaching to the order, or

        (c) in the case of a care order, discharge the care order and make a supervision order in respect of the child.”

8. The mother of the child the subject matter of the proceedings had the assistance of a Court appointed Interpreter as directed by the original Detention Order.

Submissions
9. Counsel for the Guardian Ad Litem for the child submitted that the Order should be discharged on the basis that:

        i. The Order under Section 25(6) conflicted with the young persons exercise of her Constitutional rights to travel, if she so wished;

        ii. Further and in the alternative, that the said Order lacked validity in the requirement of Section 3 of the Mental Health Act 2001 as amended and the young person was suicidal solely as a result of her pregnancy;

        iii. On the basis of two medical reports now obtained indicating that the child was not suffering from an acute mental health disorder that warrants continued detention under the Mental Health Act, 2001;

10. It was submitted by Counsel for the HSE that the submission made by the Guardian Ad Litem had been overtaken by events and it would seem that the conclusions of a second treating Consultant Child & Adolescent Psychiatrist, that the child is no longer suffering from a mental disorder within the meaning of s. 3 of the Mental Health Act, 2001 and therefore the Detention Order should be discharged at this time. While the child had described post traumatic symptoms to the first clinician, including disturbed sleep no such symptoms were described to the second treating Consultant Child & Adolescent Psychiatrist. The HSE’s position was that mental health can fluctuate and that the arguments raised on behalf of the Guardian Ad Litem could be resolved in other proceedings, which might be issued at a later stage by the Guardian Ad Litem. However the medical test required in Section 25 of the Mental Health Act was no longer met on the basis of medical evidence which was accepted by the HSE, and the HSE was now prepared to apply for the discharge of the original Detention Order.

11. Counsel for the Guardian Ad Litem indicated that on the instructions of the Solicitor for the Guardian Ad Litem another mental health professional also examined the child and looked at the clinical notes available. She was of the view that while the child said that she would do anything to get rid of the pregnancy as she felt it was killing her, this was in the context that she would be killed by the situation she found herself in, unless it was quickly resolved. However this medical professional did not feel that the child was suicidal. She concluded that there was no presenting evidence of any psychiatric disorder although the child was both desperate and distressed. For theses reasons the Guardian Ad Litem had determined that the appropriate course of action was to bring an application to Discharge the Detention Order at this time.

12. Accordingly, both the Guardian Ad Litem and the HSE were in agreement that as the medical test required by s. 25 was either no longer met or not met there was no basis for the Detention Order to continue at this time. And the Court was now being asked to discharge the Detention Order. The Application to discharge the Order was brought under Section 24(14) of the Mental Health Act which applies the provisions of sections 21, 22, 24 to 35, 37 and 47 of the Child Care Act, 1991 to the Mental Health Act 2001.

13. Both Counsel for the HSE and Counsel for the Guardian Ad Litem acknowledged that the validity of the Detention Order was not a matter for the District Court, and each wished to preserve their position in the context of any future proceedings. Counsel for the Guardian Ad Litem confirmed that his instructions came from the Guardian Ad Litem, rather than the child herself. Furthermore he wished to make it clear that should the child chose to issue proceedings challenging the validity of the original Detention Order in the future, her right to do so should not be prejudiced by the consensual discharge of the s.25 at this time. Furthermore it was accepted by Counsel for the Guardian Ad Litem that the HSE also wished to preserve its position regarding the validity of the original order in any such future proceeding.

14. Counsel for the Respondent mother endorsed the submissions made by Counsel for the Guardian Ad Litem and expressed an ardent wish that the Detention Order be discharged as soon as possible, as it was the source of distress for her and her daughter. It was also submitted that there was no disagreement about this fact ,as at the date of this application there was no basis for the Order to continue.

15. Counsel for the Attorney General attended court as having been notified of the Order and also supported the Application to discharge the Order made under Section 25(6) at this time;

16. The Guardian Ad Litem for the unborn child submitted that, in the circumstances of the evidence that the Court has been told will be adduced in this case, there appeared to be no role for the Guardian Ad Litem for the unborn child. As there appeared to be no further basis for the mother’s detention under Section 25(6), any role for the Guardian Ad Litem for the unborn child was without foundation. Counsel accepted that a novel situation arise by reason of the decision of Humphries J in the case of in I.R.M v Minister for Justice [2016] IEHC 478] and would have been prepared to advance arguments in favour of the best interests of an unborn child if the mother’s detention was to continue. Counsel for the for the unborn child had considered such a role in the context of other Court decisions such as the decision by Mr. Justice MacMenamin in the case of HSE v DK and also the recent decision of Ms. Justice Baker in the case of Child and Family Agency –v- the Presiding District Court Judge & Ors [2016] IEHC 757. In the circumstances, given that all parties now acknowledge that the grounds for the detention of the mother are no longer present the role of the Guardian Ad Litem for the unborn child is no longer relevant, as her appointment was made in the context of proceedings under Section 25 of the Mental Health Act 2001.

17. By consent of all parties, the Court adjourned the matter for a brief period to allow all parties to consider the two medical reports concerning the current mental health of the child the subject matter of the proceedings.

18. At the resumed hearing of the case, the Court was requested to consider the restrictions (if any) to be applied regarding the reporting of the case under s 29 of the Child Care Act, 1991 as amended. A reporter from the Child Law Reporting project was present in Court. The Court heard from all parties in this regard and with the consent of all parties it was agreed that it was in the public interest that the Reporter should be present in Court but that the standard reporting restrictions be applied and that no report of the proceedings should identify the child or the parties in the case, no reference should be made to any facts or circumstances relevant to the conception of the child, and no reference should be made to any geographical detail which could, through jigsaw identification, serve to identify the child or any of the parties in the case.

19. The Court heard evidence from :

        1. Dr. IMcC, Child and Adolescent Psychiatrist.

        2. The Report of Professor VO’K was admitted with necessity for formal proof;

        3. CH Guardian ad Litem for the child;

20. Dr I McC Consultant Child Psychiatrist gave evidence. He stated that when the child was admitted to the Adolescent & Family Service Inpatient Unit within the Dublin Metropolitan District Court area there were doubts about whether there was evidence of a mental health disorder as specified under the Mental Health Act, 2001. The child was in a very agitated state and was placed on one- to- one observation due to concern about her self- harming behaviour which had been reported to the unit on her admission there. The behaviour observed was of her shouting and at times screaming and throwing items about her bedroom. There was no evidence observed of depression or psychosis or anxiety.

21. Dr McC acknowledged that the first treating locum Consultant Psychiatrist, Dr. T observed the child to exhibit an agitated state that was more marked when he examined her. He explained that the child was initially seen in an antenatal unit where she was in the company of other young women who were pleased with their pregnancy, and this may have heightened her already agitated state. Dr McC was of the opinion that it was understandable that concern of “possible depression” was raised at that time. However, having had an opportunity of observing her for a week, he was of the opinion that the child did not show any signs that she was suffering from a mental health disorder.

22. Dr McC accepted the position as set out in the report of Professor VO’K, which stated that there was no evidence of suicidality when she came to his facility. He also accepted that the picture of the child’s mental health state was built up over a number of days rather than what would usually have been deemed appropriate. He acknowledged that an assessment would normally consist of a once off assessment made over an hour or so but took longer in this case. However he was now able to draw quite clear conclusions as to her mental state and he was satisfied that the child was not suffering from a mental health disorder. He was also in agreement with the findings of Professor VO’K that there was no evidence of suicidality.

23. On cross examination by Counsel for the Guardian Ad Litem Dr. McC agreed that he had received a referral for a screening opinion before the application had been made to the first Court under Section 25(6) of the Act. The unit were aware of the risk because the child had absconded from the previous unit. Dr McC stated that the child’s mental health was difficult to ascertain, because both the child and her mother had the impression that the transfer to his unit was for the purposes of a termination of pregnancy. The child and mother were clear in their narrative when they came to his facility that the child was not suicidal and was not suffering from low mood. The mother did not consent to the admission of the child to his facility. The screening was not personally carried out by him, but by his colleagues, and his sole involvement was in the clinical discussions after the screening. However the view after screening was that there was no evidence at that time that the child was suffering from a mental disorder. He accepted that there was a lot of misunderstanding in the whole referral process to his facility. Two days after her admission there was another examination of the child and she was more agitated, upset and annoyed at that time. She was mistrustful of doctors especially those in the original mental health facility. The only symptom she displayed of any disorder was a Post Traumatic Stress Disorder like symptom and while he had not personally observed an account of symptom himself by the child, she had reported to medical colleagues in the facility that she had ‘flashbacks’ of the circumstances which led to her pregnancy.

24. Dr. McC stated that over the last number of days the child has settled and had very little need for medication. She was seen only by her mother, medical personnel in the medical facility, two independent Psychiatrists coming to assess her case under the Protection of Life during Pregnancy Act, 2013 and an obstetrician. She was upset by the numbers of professionals who were all asking her broadly the same questions. Other than medical personnel in the facility, the child was only seen by her mother and the Guardian Ad Litem. The Protection of Life multidisciplinary team headed by a Clinician intend to discuss a potential termination with her and her mother if and when the Involuntary Detention Order is discharged and she can be transferred to a maternity hospital. In the opinion of Dr McC, the uncertainty of it all was causing the child to be distressed, but she had been informed about a possible time frame of two and a half weeks in this regard, if the child intends to undergo the procedure to terminate the pregnancy.

25. On cross examination by Counsel for the mother Dr McC indicated that the child could remain in the mental health facility until her transfer to the maternity hospital and this information had been conveyed to the mother. Dr. McC confirmed that he was not a relative of the child for the purposes of Section 25 (2) of the Mental Health Act, 2001.

26. The Court heard evidence from the Guardian Ad Litem, CH, that he met with the child on three occasions. The child was a bit agitated, but this was due to being kept in the same room for a number of days and not being allowed out. It was her wish to leave the mental health facility and to try and get some normality back in her life. The big question for her was that she was pregnant and wanted clear answers about her questions as to what she can or not do about the pregnancy. She wanted a time scale to be provided to her so that she could consider her situation. She did not want her personal details published or circulated and in the opinion of the Guardian ad Litem any such publication would cause her further distress were she to read it.

Legal Analysis
27. The first Order made in this case was for the Involuntary Detention of a child for a period of 14 days. The Act permits a longer period, but the period of 14 days was considered to be a proportionate period fixed by the first order. The said Order incorporated all of the protective factors contained in the Child Care Act, 1991 including the appointment of a Guardian Ad Litem for the detained child. The Court also appointed a Guardian Ad Litem for the unborn child having regard to the High Court decision already set out. The current application before this Court was to Discharge the Involuntary Detention Order made by the first Court. The Application was brought before this Court by the Guardian Ad Litem for the child, but moved on the day of hearing by the HSE.

        28. The sole issue to be determined is whether the Court should now discharge the Order made under Section 25 (6) of the Mental Health Act, 2001 in accordance with Section 25(14) of the 2001 Act. Section 25(14) provides that the provisions of sections 21, 22, 24 to 35, 37 and 47 of the Child Care Act, 1991, apply to proceedings under the Mental Health Act, 2001 in the context of applications which relate to a child. Section 22 of the Child Care Act, 1991 provides:

        “22.—The court, of its own motion or on the application of any person, may—

        (a) vary or discharge a care order or a supervision order,

        (b) vary or discharge any condition or direction attaching to the order, or

        (c) in the case of a care order, discharge the care order and make a supervision order in respect of the child.”

29. Having considered the evidence tendered and the medical Report of Professor VO’K, received by the Court with the Consent of all parties, and having considered the legal submissions of counsel for all parties in Court, I am satisfied that at this time the child is not suffering from a mental disorder within the meaning of the Mental Health Act 2001 and so there is no basis for her involuntary detention. The child does not wish to be detained or to be treated in a mental health facility. Accordingly the he Court Discharged the Order for Detention of the Child pursuant to Section 25(14) of the Mental Health Act 2001 and Section 22 of the Child Care Act, 1991.

30 Furthermore having considered the further submissions by counsel for the mother of the child and Counsel for the Guardian Ad Litem for the Child, I direct a temporal restriction on any report or publication in the case so as to enable the child and the mother to have sufficient time to reflect on making a difficult and personal decision, in the absence of publicity.

31 The Press Restrictions applied following consideration of all other submissions from the parties and notice parties were made having considered the desirability of promoting public confidence in the administration of justice achieved through reporting cases heard in the District Court. Any such Report should be restricted to the extent necessary to give an account of the core issues of the application before the Court in order to preserve the anonymity of the parties of the within proceedings, and the child the subject matter of the within proceedings, by reason in the interests of justice.

The applications for costs for the Guardian Ad Litem for the Child, the Unborn Child and the mother should be borne by the HSE, and certified for both Junior and Senior Counsels. Such costs are to include the Medical Report and interventions of Professor VO’K. The costs are to be taxed in default of agreement;

Judge Rosemary Horgan

President of the District Court

25th October 2017











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