Over two years ago the High Court delivered a written judgment granting various declarations in a case involving a teenage child (the child or Miss X) brought against the Health Service Executive (HSE) in respect of the circumstances in which the child was placed in a room off the hospital’s emergency department for approximately sixty days, which it found to have been unlawful. The judge was highly critical of the HSE. The Child and Family Agency (CFA) was a notice party to the proceedings.
However, the HSE wrote to the judge asking him not to publish the judgment at that time, claiming that this could have a detrimental impact on the girl. This was despite the fact that the judgment had been reported on in the national media and the Law Society Gazette at the time. Although the child’s parents, her guardian ad litem (GAL) and the CFA, had no objection to the publication, the judge delayed publishing his judgment until a report was obtained from the girl’s GAL about its potential impact on her. The Child Law Project was a notice party to this aspect of the proceedings, and considered it was covered by this ruling, and therefore could not publish its report on the case until the judge felt it appropriate to publish his judgment on the Courts Service website. However, we did consider it permissible to publish a report on the publication issue, which was published here:
www.childlawproject.ie/latest-volume/high-court-delays-publication-of-its-judgment-finding-hse-failed-to-uphold-the-rights-of-a-child-in-care-with-disabilities/
The judgment has now been published on the Courts Service website at
www.courts.ie/viewer/pdf/037fb403-9476-4c18-9dad-46c3e53222a1/2021_IEHC_803.pdf/pdf
Orders remain in place to ensure that no information that could identify the girl is published.
Summary
The child had a number of behavioural issues arising out of her disability, and her parents had sought help from the HSE’s disability services, including seeking an appropriate residential placement for the girl in 2020. No such placement was found, and she was placed temporarily in a respite placement. This was terminated abruptly, and she was then brought to the emergency department of the local hospital. She was left in a darkened room off the emergency department, with no access to natural light or fresh air, and without even a television or access to the internet until shortly before the proceedings began. She remained there for 60 days, and it appeared she was likely to remain there for many more weeks, until her mother brought judicial review proceedings against the HSE. The Child and Family Agency (CFA) which had been providing support to the family, were notice parties to the proceedings.
During the proceedings the HSE argued that the Child and Family Agency should have sought an interim care order or brought special care proceedings to have the child detained in a special care unit. The CFA lawyer pointed out that at no stage prior to the hearing had this been raised by the HSE, and stated that there was no legal basis for bringing a special care application, as the issues for this child concerned her disability, which fell under the remit of the HSE. There was no parental failure in this case, and therefore no basis for seeking a care order. The lawyer also pointed out that the joint protocol between the CFA and the HSE concerning children with disabilities stated that: “No child or young person with a mental health and/or disability issue should be taken into state care as a consequence of insufficient disability/mental health services or support.”
The hearing continued over two days, culminating in a judgment in which the judge stated that the HSE had repeatedly acted in a manner that was unreasonable and “at points crosses the line into irrationality.” He found that there had been a failure on the part of the HSE to vindicate the personal rights that the child enjoyed under the Constitution.
The court dismissed the argument advanced by the HSE that the making of any of the declaratory orders sought would infringe on the separation of powers. The court also rejected the suggestion made by the HSE in respect of the CFA seeking an interim care order or special care order in respect of the child. The judge stated that “[i]n truth the suggestion that the child would be detained in a special care unit pursuant to a special care order would not just be disproportionate but at the extreme end of disproportionate.”
The judgment, which has not been appealed, is particularly clear on the respective responsibilities of the HSE and Tusla/the CFA with regard to children with disabilities. It states:
“[b]ringing Miss X into care would not in any way advance her cause. Bringing Miss X into care is not what is required in this case. What is required, when the within proceedings are distilled to their essence, is the need for the provision of disability services to a child – and such provision, without a shadow of legal doubt, is the legal responsibility of the HSE. The CFA can support the HSE in the provision of that service (and have been a consistent presence in this regard when it comes to the case at hand). However, it is not within the CFA’s responsibility or power or function to provide disability services: that is entirely for the HSE – and all of the reports from the HSE’s own assessors have indicated what is required of the HSE when it comes to Miss X and that is the provision by the HSE of a suitable disability service to Miss X.”
The judge then made a number of declarations, including that Miss X’s current and/or continued placement in [Stated Name] Hospital was not in her best interests and was detrimental to her welfare; that the current and/or continued placement in the hospital setting had resulted and was resulting in a disproportionate and unlawful interference with her constitutional and human rights as a minor and a person with one or more disabilities. These rights were (a) her right to have decisions made in her best interests, and/or (b) her right to dignity, and/or (c) her right to autonomy, and/or (d) personal and bodily integrity and/or (e) her right to privacy. He also declared that by placing her in a hospital the HSE had disproportionately and unlawfully interfered with her constitutional rights, named previously.
The judge also made a declaration that it was in the best interests of Miss X and necessary in order to promote her health and welfare that a residential placement be immediately identified for her in order to vindicate her rights pursuant to the Constitution.
He concluded his judgment with a letter to child, explaining his decision, which we also publish here.
The hearing
The initial hearing in 2021 took place over two days in the High Court. Summarising the case in his written judgment, the judge stated:
“Miss X is an adolescent child and a person with a disability. The HSE has known since February 2019 that her case was ‘bubbling up’ through the system and it has known since spring/summer 2020 that it was most likely (it later became entirely clear) that Miss X would and will require residential treatment for her ailments, Yet despite this knowledge, the HSE allowed a situation to arise in which on [a date during the summer], with no residential place arranged for her, Miss X was placed in a room off a busy emergency department ward in a regional hospital. Miss X has now been left to languish in that hospital room for close on 60 days. She and her mother have come seeking certain declarations as to the unlawfulness presenting in her situation. The court will make various declarations in this regard. Though this has never been a case about money, Miss X’s statement of claim also seeks an award of damages. This was not the subject of argument at hearing and it is not entirely clear to the court whether this relief continues to be sought.”
Judicial Review proceedings were issued in the High Court by the mother of the teenage child with a disability and on behalf of the child as applicants against the HSE. The Child and Family Agency (the CFA) were joined as a notice party to the proceedings. The court had appointed a guardian ad litem (the GAL) to the child and he was also joined to the proceedings.
Family’s position
The child was under the care of the HSE as the family were unable to care for her at home safely. The senior counsel who represented the mother and the child told the High Court that the child had spent eight weeks in a hospital room that initially had no television or internet access. The court heard that the family and the GAL were of the view that this arrangement was inappropriate as the child had no interaction with staff and that she was losing out on a whole variety of interactions. The court also heard that she had not been outside her hospital room since she was admitted to the hospital.
The proceedings sought a number of declaratory reliefs in respect of the child’s continued placement in the hospital room including that the child’s “current and continued placement in a hospital setting” was not in her best interest and/or was detrimental to her welfare; a declaration that the placement of the child in a hospital setting and/or by failing to prevent her placement in the said hospital and/or by failing to facilitate her discharge to a safe and suitable residential placement the respondent HSE had failed to exercise its statutory functions or fulfil its statutory duties; a declaration that the current and/or continued placement in a hospital setting had resulted in a disproportionate and unlawful interference with the child’s constitutional and human rights namely her right to have decisions made in her best interests, her right to dignity, her right to autonomy, her right to personal and bodily integrity and/or her right to privacy.
The proceedings also sought a declaration that it was in the best interests of the child or necessary in order to promote and protect her health and welfare that a residential placement be immediately identified for her in order to vindicate her rights pursuant to the Constitution and/or the European Convention on Human Rights. A further alternative relief directing the HSE to facilitate the child’s discharge from the hospital to a safe, suitable and appropriate residential placement forthwith was not pursued at the initial hearing, but the applicants reserved their right to pursue this mandatory relief at a later date.
The senior counsel for the family told the court that the position of the HSE was that they were doing everything they could for the child. The court was told that the child required support for her complex needs and that her rights have been violated and she required a placement that met her complex needs. Correspondence between the parents’ solicitor and the HSE was opened to the court, stating that the child required a residential placement to meet her particular needs and a report had also been prepared by behavioural specialists. A letter from the HSE had also assured the then Minister of State for Disability that the child would have a residential placement within eight weeks. The court was told that ten days after that letter the child was placed in a hospital room in the emergency department of the hospital which was not safe. This was during the Covid-19 pandemic when it “was even less safe”, and the child had declined to be vaccinated.
The family’s barrister said that the HSE had previously appeared to identify an appropriate placement but then said that they needed to carry out a multi-disciplinary assessment. The HSE’s affidavit referred to referrals made to residential placements, but the barrister said that it called into question the steps taken by the HSE and “the degree of follow up” by the HSE. He said that the HSE were “on notice of her needs” and that they told the Minister of State for Disability that “they have it in order”.
The barrister outlined to the court that the child had been placed in a holiday respite placement but while she was there the family were told to come and collect her.
Barrister: “The family cannot have her in the home because of the behavioural difficulties and the two other minor children.”
He said that the HSE’s position was that it was a holiday placement for two weeks and that it was clear to the parents that was what it was. The parents were told they had to collect their daughter and the child ended up being transported to the hospital emergency department and she had remained there since. The barrister said that the suggestion by the HSE that “residential care is not necessary, and that mom and dad can take her home is unfathomable”.
The barrister questioned why assessments were important and relevant now “but how come they weren’t important in June when they said they had a placement for her?” He said that “commitments were given, then they disappeared” and if it took another eight weeks to find a placement the child would have then spent twenty-two weeks in hospital which was “a long time” for a teenage girl and “it is no answer to say we are doing our best.”
The GAL had met the child and agreed that the placement of the child in the hospital room was inappropriate. The GAL had described the “starkness of her room” and the lack of any stimuli with no TV or internet access. The child was provided with no education and the lack of engagement with the outside world was impacting on her. He said that the child’s condition was deteriorating and there was a lack of engagement with the authorities.
The GAL reported that the child became more frustrated with her circumstances and she focused on certain test results fearing that “she will be locked up in a mental hospital.” The child had minimum social interactions other than those provided by professionals and she had “sat in her room in total darkness”. The GAL reported that the circumstances were a deprivation of her personal freedoms and that she was missing out on a vital period of her adolescence.
He said that that there was a suggested lengthy lead-in time of sixteen weeks to an alternative placement and something was required between the hospital and the final placement to address the child’s needs in the interim. There was the possibility of holding a teenage girl in an emergency department room at Christmas and there must be a step-down placement for her as she was deteriorating. The court was told that the child had not left her room, had not gone outside and was in a “Covid-rich environment”.
The GAL was of the view that the inappropriate circumstances needed to be resolved as soon as possible. He said it was an imperative that it be resolved “no matter whose responsibility it is, both agencies form a part of the State” and there were obligations on the State. The GAL was “very clear on the harm the young girl is suffering” and the negative impact the placement in the hospital was having on her.
Legal submissions were made in respect of the obligations and statutory duties of the HSE with reference to section 7(1) of the Health Act 2004 and case law. The barrister said that the child needed an appropriate placement where her health and welfare could be supported. It was submitted that it was a matter for the HSE rather than the CFA as the child was not in the care of the CFA and there had been no parental failure.
Barrister: “This matter is within the competence of the HSE. No child with a mental health issue or disability should be taken into care solely based on those issues. State care must be a last resort.”
It was submitted that if the child’s rights are interfered with it should be proportionate and for the least amount of time and the least interference. It was said that the child was living a “hollow existence” and that she had not had fresh air in seven weeks and it was “a far cry from what she needs”. The barrister told the judge that the child can talk but would not and there was a refusal or unwillingness to communicate and she had feelings of isolation. Legal submissions were made in respect of the constitutional rights of the child with reference to caselaw where similar declarations were made in situations where constitutional rights were not vindicated in the manner that was required.
Referring to a case cited, the family’s barrister said: “If eleven days in a padded cell is enough to get such a declaration, then fifty days in hospital for a disabled girl with evidence of deterioration should be sufficient.”
On the second day of the hearing the barrister for the mother and the child made legal submissions that the caselaw cited by the HSE in respect of the separation of powers did not apply, as the proceedings did not relate to policies for disability generally but rather an individual child in the circumstances of this case. The barrister said that the HSE had identified the child as a person in need of social care services and the duty arose because of the actual knowledge they had where the HSE had particular knowledge of her circumstances.
He told the court that the proceedings were seeking “specific order with a specific child in specific resources,” and there was no issue in respect of resources generally and the applicants were not seeking for the HSE to spend funds in a particular way. The HSE was already spending the resources of the general hospital, funded and administered by the HSE. The proceedings did not raise an issue of budget or raising taxation or public resources and the HSE had already committed to the expense of a longer-term placement. He said that any argument in respect of the separation of powers and the case of TD or fund allocation was “untenable”. He said that there was “no disagreement about the appropriateness of the circumstances she finds herself [in]”.
In respect of the mandatory orders sought in the proceedings the barrister said that he would reserve his position in respect of those reliefs. The Supreme Court had stated that it was a clear part of the function of the courts to defend and vindicate rights under the Constitution, and it inevitably followed that the courts can do all things necessary to vindicate such rights. In the case of DG v Eastern Health Board it was held that it was not for the courts to conjure up a secure placement unit but there was an obligation to protect and vindicate the rights of the child and to do all things necessary to do so. The barrister said that the applicants were not asking the court to be prescriptive in respect of the placement and it would then be a matter for the HSE as to how it responds if the declarations were made.
The barrister told the judge that there was no dispute that the child’s placement in the hospital for that length of time was inappropriate and there was no reasonable evidence that it was not harmful to her and there was actual proof of harm with objective evidence of a failure to protect and vindicate the child’s rights.
HSE position
The senior counsel for the HSE said that it was not a case that might be regarded as being an omission or error of the HSE but that the decisions made were not without great consideration of care. He said the reliefs sought were discretionary remedies requiring the court to look at the overall circumstances and there was an element of judicial restraint to recognise the “difficult situation on the ground” of people with statutory power. The barrister said that the applicants’ barrister “correctly doesn’t invite the court to forge a specific solution”. He described it as an unusual case where “the evidence matters”.
The HSE barrister said that there was a suggestion made that the court should consider a special duty owed by the HSE to the applicant but this was not a true construction of the Health Act 2004 which provided for a general duty to the public and the statute was silent in respect of a specific personal duty owed to a specific citizen. He said that the HSE had a very difficult problem as nobody had said what the alternative placement would look like.
HSE barrister: “I invite the court to consider that the case is more complicated than what might first appear.”
The barrister went through the affidavits before the court and highlighted the background circumstances and the “long list” of third parties contacted by the HSE and he said that the HSE had to get special services in for complex cases. He said there was evidence that the child did not get on well with some of the service providers and that these were “problems not created by the HSE”. The barrister said that there was ongoing regular teleconferences with all parties including the CFA trying to find a solution and the CFA had taken the view that there were no child protection concerns in this case. The barrister said that there was an emphasis by the applicants that ultimately it was not something connected to the CFA but he said that that the multi-agency cooperation which the GAL advocated for, and which the HSE “has sought, is perhaps the possible key to an intermediate solution.”
The barrister outlined the background of the placement where the child had been prior to being moved to the hospital, which was following a request by the parents for a respite holiday break, which the HSE said was only short term for two weeks. The barrister said that the respite placement was only allowed for twenty-eight days, after that the facility was not HIQA approved, but that the CFA “has powers under its own legislation” to provide a placement. He said that any involvement by the CFA was “not a reflection on the family or parents” but was a specific focus on what the child’s needs were in terms of care.
The barrister referred to the provisions of the Child Care Act 1991 which allows for a special care order to be made, be subject to High Court review, where a child’s behaviour poses a risk to the life, health, safety, development or welfare of the child. He emphasised the need for a multi-agency approach and to have dialogue “to deal with the sub-optimal solution but the necessary short-term solution”.
The barrister for the HSE said that the respondent had never refused to provide a placement but the situation was more nuanced and complicated than in the papers provided. He said the situation required a careful assessment to ensure a placement was warranted and appropriate and in the child’s best interests, and it is “always a concern not to detain in an environment where it is not clinically necessary”.
The judge asked the barrister for the HSE if a placement in the United Kingdom had been considered. The court was told that the HSE was “trying to find a solution”, and that there needed to be planning in advance with time to train the staff given the child’s complex needs, and also to have a comprehensive transition plan in place. The HSE barrister said that there was “no evidence of irrationality” and there were good and specific reasons why a placement would take twelve to sixteen weeks so the staff was fully trained. He said that the timeframe was outside the control of the HSE for various reasons.
The court was further told that all residential services must be registered with HIQA to ensure it met the needs of the individual in order for the placement to be “legally compliant”. The barrister also said that there was “a shortage of staff nationwide at this time”, it was not possible to expedite the placement and it was not in the power of the HSE to provide an interim placement. The judge asked about the hospital room the child was in, if there was a window and whether it was external facing.
The barrister for the HSE made submissions in respect of the role of the CFA in the proceedings. He said the HSE was of the view that it appeared to it that there were significant child welfare concerns and referred to hospital admissions, suicide attempts and incidents of aggression and behavioural issues where it had been necessary to have the Gardaí involved due to property damage. The barrister said that the parents were not in a position to collect their daughter and they had admitted that they were not in a position to care for the child. He said that it was “not for the HSE to direct the CFA to intervene in a case” but it remained the “practical position that the HSE does not have the equivalent powers of the CFA” in respect of care orders and that the HSE could not intervene to provide an emergency short-term response.
HSE barrister: “The respondent simply doesn’t have a residential unit and [the HSE] cannot lawfully provide forthwith a lawful or immediate placement.”
He assured the court that the HSE remained “fully committed” and significant progress had been made but that the problems and issues remained. The barrister said that it would be incorrect to describe the response of the HSE “as objectively failing to vindicate [the child’s] constitutional right”. The position of the HSE was that it did “not have the power” and he asked that “the court might urge further dialogue along those lines”. The barrister said that available resources was not just money but also included staff skill and training and that a multi-agency approach would be a “richer armour”.
The HSE’s barrister highlighted a number of points in some of the reports before the court. He said the child presented with several false beliefs and a paranoid behaviour which required an urgent mental health assessment. He outlined some of the background circumstances of the child over the previous few years including attending at hospital accident and emergency departments and inpatient admissions with CAMHS and said that the child had a “very complicated presentation”.
The court was referred to the report of the hospital which outlined that management and staff at the hospital were in agreement that the child’s placement in the hospital was not appropriate for her, they were not trained and were concerned about her deterioration. Her behaviour was very challenging for the staff. The barrister said that there were identified complexities in this case and he reiterated the HSE view that there was a requirement for inter-agency cooperation.
The barrister referred the judge to a number of points in the written legal submissions that had been furnished to the court. He said that section 7 of the Health Act 2004 provided no statutory duty to each individual citizen and the HSE had to secure the most beneficial and efficient use of resources. The HSE barrister said that the applicant’s submission that to invoke the CFA jurisdiction would be an “adverse reflection” on the parents was misplaced.
There was a discussion between the judge and the barrister as to whether there was evidence that the “current situation” was actually causing the teenager harm. The HSE barrister said that although nobody accepted that the situation was appropriate, the child was secure and cared for and her physical needs were being met, and although she was distressed it was “not causing physical illness”. The barrister said that there was “pre-existing distress of paranoia and unusual beliefs” which was part of her presentation and there was no causative negligence or breach of duty. The HSE barrister said that there was not a refusal or failure to provide services but the issue was in respect of a short-term placement.
HSE barrister: “This current situation arises out of an emergency situation where the parents felt unable to care for [the child] or collect her.”
The barrister made legal submissions in respect of the principles of the separation of powers, the statutory duty of the HSE and the use of limited resources. He said that there was “no detention in this case” but that it was the provision of a place to stay and to be fed with personnel present to form security which arose from an emergency situation. He said that there was not sufficient evidence in the case to “trigger an entitlement to judicial intervention”.
The barrister for the HSE made submissions to distinguish this case from the judgment in O’Donnell v South Dublin County Council which the applicants had relied on. He said that was a case of “exceptional circumstances” and that no specific duty arose in this case and the Housing Acts had a “different rationale”. In response to the submission that the HSE had “full knowledge” of the applicant’s situation, the barrister said that the HSE had knowledge because it had been trying to solve the problem. He said that the term “resources” does not just mean finance but included to deploy resources such as staff and training. The court was told that the evidence did not demonstrate any disregard to the applicant’s constitutional rights.
HSE barrister: “There may be criticism of the quality of service or speed of service but nothing to indicate [that the HSE] refused to exercise best endeavours”.
The barrister urged the court to consider it to be a very unusual case where the HSE had not refused to spend money but there was “a gap that has emerged”, there had been attempts to bridge that gap and there had to be a basis on evidence and a basis in law for the court to intervene.
CFA position
The Child and Family Agency were a notice party to the proceedings and no relief was sought in the proceedings against the CFA.
The barrister for the CFA emphasised that the CFA had “worked strenuously to try and seek a solution in respect of this child” and had been involved in daily teleconferences. She said that the CFA had stepped in to negotiate with the previous placement to extend it “when the HSE decided to abruptly end it one Friday”. The CFA barrister said that disability and mental health services were for the HSE and the CFA tried to provide what it could for child welfare but that these were clearly issues within the remit of the HSE.
The barrister referred to the first suggestion made by the HSE barrister in respect of a special care order, and said there had been no reference to this in any affidavits or submissions from the respondent. She told the court that there were “no grounds” to seek a special care order.
CFA barrister: “There has been no parental failure in this case and the applicant has behaved appropriately in respect of the child from the CFA point of view.”
The parents had sought services and there were no grounds to say that they had failed in their parental duty and there were no child protection concerns. The barrister told the court that the CFA had become involved following a referral in respect of the other children in the family as to whether they were impacted by the child’s behaviours. She said that an appropriate safety plan was in place to ensure their welfare was protected. The barrister emphasised the high threshold for state intervention to bring a child into care and if the state has to intervene it had to do so by proportionate means. She said that the reference to a special care order would be disproportionate. The child needed a residential placement that is ASD-led and that is “not what a special care unit is”.
CFA Barrister: “So the suggestion [for the child to] be detained on a special care order is extreme. There is no basis in law or under the Constitution to bring such an application.”
The barrister outlined the provision of residential placements for children in the care of the CFA and said that there were approximately one hundred children awaiting a place in a residential unit. She said that the CFA had the same problems with a lack of skilled staff and resources and she did not see grounds to bring the child into the care of the CFA. The barrister said that the CFA would continue to support the family as it had already done in respect of welfare issues and to work collaboratively with the HSE to find a solution.
The CFA barrister expressed concern that the HSE was seeking to invoke special care and said that it was “an arbitrary response to the situation”. She referred the court to a document called Joint Protocol for Interagency Collaboration Between the Health Service Executive and Tusla – Child and Family Agency to Promote the Best Interests of Children and Families dated March 2017. The barrister read from the overarching principles outlined in the protocol:
“No child or young person with a mental health and/or disability issue should be taken into state care as a consequence of insufficient disability/mental health services or support.”
The barrister said that state care was a “last resort”, it did not “advance the child’s cause” by using an artificial mechanism to bring the child into care, and the CFA had ruled out the possibility that care was necessary in this case. She said that the provision of disability services was the responsibility of the HSE and the CFA was there to support the HSE but it was not in the power, responsibility or function of the CFA to provide that service.
GAL position
The barrister for the GAL outlined to the judge that the difficulty for the proposed placement was that the wait time had increased from four to six weeks to a period of twelve to sixteen weeks which would mean that the child, who had already been in the hospital for fifty-one days, would be there for 102 more days which was “a tripling” of the time she had been in the hospital room. The GAL’s view was that this was unacceptable for this vulnerable child and the child needed stability and security.
He said that it was the GAL’s position that it was “still within the HSE’s gift to find a placement” and the child was at the highest level of need. The GAL’s view was that there had to be a route out of the situation and a solution. It was unsustainable that the HSE was prepared to stand over the child being placed in the hospital room when it was universally acknowledged that it was detrimental to her welfare to stay where she was for the time proposed.
In response to the earlier question from the judge about the hospital room the GAL’s barrister said that the room was very close to the triage desk at the end of the corridor and there was a window, but the GAL could not confirm if the window was openable, but it was not open at that time of the visit. He described the window as part frosted with a section above that where one could see outside. He said that “she hasn’t gone outside or seen or felt fresh air” since she was placed in the hospital and there was no physical activity built into her day. He said the child’s “bags were still there and largely unpacked” and for a period of time she had no TV or WIFI.
The GAL had described the first time he had met the child and that “understandably as a girl she was embarrassed where she was” and she had said that she was “a joke and a disgrace”. He was of the view that there was “no coherent coordinated response form the state agencies”, there needed to be inter-agency communication and there had to be “a creative solution”.
GAL barrister: “It can’t be that she stays for another 102 days in an entirely inappropriate placement”.
The barrister for the GAL noted the first mention of special care from the HSE. He said that the child may not fit the criteria for special care and there was already a significant limitation on the special care list in terms of capacity and for the GAL it was “a non-runner”. The GAL’s barrister said that the child wanted to be heard and that “she had specified that she didn’t want to be locked up in a psychiatric hospital”. The barrister said that the GAL’s description of his visit to the child “takes the court through a bleak, stark and depressing vista” of the child “sitting on her own in a darkened room”. It was said that the child’s “current lived experience is that of isolation”. The situation had developed and had been allowed to continue and the child’s health and welfare were being avoidably impaired.
The barrister said that the GAL was not getting involved with the difficulties between the CFA and the HSE but questioned how the stakeholders could stand over the child remaining in that situation. He said that all the agencies needed to work together and that it “may well be that certain declarations may focus minds”.
Applicants’ response
The senior counsel for the applicants responded to the submissions made by the other parties. In response to the submission on behalf of the HSE that it was a case of complexity and nuance raising an interagency issue, the barrister described this as “a masterclass in distraction” as it was fundamentally an “extremely simple case” and the evidence disclosed that. He reiterated the GAL’s observation that there was a long history to this case prior to the child being placed at the hospital and that it was as if the HSE was taken a bit “by surprise” and it was difficult to understand how the HSE was surprised with the long lead-in history dating back to 2017. In respect of the HIQA registration the barrister said that the HSE was well aware that when it came to the registration process there was always a lead-in time.
In respect of the judge’s earlier questions to the HSE’s barrister about whether a placement outside of the jurisdiction had been considered the applicant’s barrister said that there was no evidence that a placement outside of the jurisdiction had been sought and that the court was bound by that evidence. The barrister said that the applicant was not suggesting that the HSE was the “guarantor of wellbeing” but that the HSE had an obligation under the Act to deploy resources and it was necessary to ask whether the HSE had done all that was reasonably practicable in all of the circumstances.
The barrister for the applicants said that the HSE had not addressed the issue of the reasonableness or rationality of the HSE’s response. He gave the example of what was said in a letter to the then Minister about a placement for the child and said that “quite frankly there is no answer or no explanation”. Referring to the joint protocol for interagency collaboration between the HSE and the CFA, he said that that the child’s rights were to be impacted as little as possible.
Applicants’ barrister: “The court must ask in terms of what was done, was it done in a manner that interfered as little as possible with the constitutional rights of [the child]? On the evidence the answer must be no.”
The barrister for the applicant said that the barrister for the CFA and the GAL had already “alluded to the notion of special care” and that he was “astounded” when that was suggested that morning by the HSE. The issue of special care had not been raised previously in any affidavit and there was “not a whiff of it” in the written submissions of the HSE. The barrister said that for the reasons already urged on the court by the CFA and the GAL the suggestion of special care was “utterly inappropriate”.
The barrister said that it was an “extraordinary submission” made on behalf of the HSE that the child was not being harmed by the placement and that the distress was caused by her condition and not by the circumstances of the placement. In response to the HSE’s submission that the child’s material needs were met by way of food, water, warmth, a bed and sanitation facilities, the applicants’ barrister said that her basics needs were met but that there was “more to human needs than that” and that everyone needed emotional security and peace of mind.
The barrister said that if the HSE was “so agitated by a failure of the CFA to intervene” that it was open to the HSE to issue judicial review proceedings against the CFA and that would have determined where the rights and responsibilities lay. He said that the joint protocol between the HSE and the CFA made it “abundantly clear” that if it was a resource issue it was “not a reason for that purpose alone to take a child into care”.
The family’s barrister said that it was a simple case on the evidence and whether there was a failure to vindicate the rights of the child was an objective assessment and that the evidence satisfied that. He said that it was “manifest” that all that was reasonably practicable was not done and he described it as an “appalling situation” for the child to have endured for that time where the HSE had actual knowledge of it. The barrister confirmed that the applicants were reserving their position in respect of the mandatory reliefs that had been sought in the judicial review proceedings.
In response to the HSE submission that in judicial review proceedings the court should exercise restraint and exercise discretion, the applicant’s barrister said that there was a duty on the court where the court was “alive to the actual situation of a named child” and the court was aware of the evidence that her constitutional rights were not being met. He added that it was necessary to look at the words of the Supreme Court that it was the duty of the courts to vindicate rights.
At the conclusion of the hearing on a Friday afternoon the judge said that he was “very sorry” that the child was so unwell and that he had only started family cases last year but that “this strikes me as a particularly bad case” and that he wished her the best. The judge said that for the parents it was a “terribly trying time”. The judge said that having heard the proceedings that he would be granting one or more of the reliefs that the applicant had sought and that he would consider the matter over the weekend and tell the parties on the Monday what he proposed to do.
Judgment
After the weekend the judge delivered a written judgment to the parties granting declaratory reliefs against the HSE and the judge also wrote a letter to the child explaining the judgment.
The lengthy written judgment consisted of 70 pages including the letter to the child and set out in detail the chronology of events and the evidence before the court. The judge summarised the case before him as follows:
“Miss X is an adolescent child and a person with a disability. The HSE has known since February 2019 that her case was ‘bubbling up’ through the system and it has known since spring/summer 2020 that it was most likely (it later became entirely clear) that Miss X would and will require residential treatment for her ailments. Yet despite this knowledge, the HSE allowed a situation to arise in which on [a date during the summer], with no residential place arranged for her, Miss X was placed in a room off a busy emergency department ward in a regional hospital. Miss X has now been left to languish in that hospital room for close on 60 days. She and her mother have come seeking certain declarations as to the unlawfulness presenting in her situation. The court will make various declarations in this regard. Though this has never been a case about money, Miss X’s statement of claim also seeks an award of damages. This was not the subject of argument at hearing and it is not entirely clear to the court whether this relief continues to be sought.”
The judge made the following observation in respect of the child being placed at the hospital being referred to as a “placement”.
“Miss X’s containment at the hospital (the court hesitates to use the word ‘placement’ because that falsely suggests her stay at the hospital to have been the outcome of some sort of programmatic arrangement)…”
The court had viewed the child’s “containment” in the hospital as “not at all suitable for her and, unsurprisingly, is having a detrimental effect upon her”. The judge noted that “[r]ather shockingly, she has not been outside in the fresh air for the entirety of her time in the hospital”. The judge commented that the HSE had come to court indicating that it was “doing lots of things now to try and sort out matters” but that the HSE had over a year to “get things sorted out and just did not – and no good explanation has been offered as to why it did not”.
“…Consequently, it is no excuse now to say that it would love to place Miss X in a placement straightway but that in reality its doing so will just take time. The groundwork which is causing the present problem should have taken place in 2019 or in 2020 or in early-2021 and patently was not. No excuse has been offered for this lamentable delay – and its present expression of regret, to use a colloquialism, simply do not ‘cut the mustard’ when one is dealing with so serious a situation as a child who is in need of residential care and who, thanks exclusively to the HSE’s ineptitude, is now being left to languish in long-term semi-isolation, in a room off an emergency department ward, in a hospital that is simply not geared to meet her complex needs.”
The judge indicated that the child had come to court seeking various declarations as to the lawfulness of how she had been treated by the HSE and that the court would grant the declarations sought but continued by stating that “[h]owever, none of these declarations will achieve what Miss X really needs, which is to be transferred out of the hospital room as soon as possibly and placed in an appropriate placement.”
In the judgment the judge outlined a detailed chronology of the circumstances leading up to the child being in the hospital room and to the issuing of the proceedings. The judge noted that the hospital was not equipped to deal with her complex needs and that at the time of the writing of the judgment the child continued to be in the hospital “living an isolated existence in a room off a busy A&E department” and that the court would consider later in the judgment “the bleak nature of Miss X’s existence at the hospital”. The judge made further observations as follows:
“… It would but note at this juncture that the manner in which she has been accommodated is simply appalling: counsel for Miss X used the word ‘abominable’ in his submissions and the court would not demur from his use of that word. It is in no way to treat any human being in need of the type of structured relief that the HSE’s own advisors have identified and it is so much worse that it has happened in respect of a child, and more, a child with a disability…”
In the chronology the judge noted that the general hospital manager had indicated that the child was medically fit for discharge and had also indicated in correspondence to the mother that the hospital was not receiving adequate support for the HSE’s disability services in order to care for the child and he indicated that he intended to ask the Gardaí to invoke section 12 of the Child Care Act 1991 in respect of the child. The judge commented that “[a]s it happens the Gardaí, perfectly properly, declined to invoke s.12” and that the judgment would later consider the “perfectly reasonable and legally correct position of the CFA, this is not a case for a care order and s.12 essentially provides for emergency removal of a child to safety where there is just not the time to obtain an emergency removal of a child to safety where there is just not the time to obtain an emergency care order (if such an order is eventually sought), so its invocation would have been entirely inappropriate”.
The judgment detailed the extensive correspondence between the applicants’ legal representatives and the HSE calling upon the HSE to facilitate the child’s discharge from the hospital to a safe residential setting and warned that if that did not occur that legal proceedings would be instituted to vindicate the child’s rights.
The judge said that the evidence of the GAL “makes for bleak reading” and outlined the GAL’s description of a number of visits to the child in the hospital. The GAL had noted that at the first date of hearing the child would have been “resident in the bare and stark room in [Stated Name] Hospital for a period of 50 days”. The judge also outlined some of the averments in the mother’s affidavit in respect of the child and the impact that the hospital setting was having on the child.
The judgment stated that the HSE had repeatedly acted in a manner that was unreasonable and “at points crosses the line into irrationality”. The judge found that there had been a failure on the part of the HSE to vindicate the personal rights that the child enjoys under the Constitution. The court dismissed the argument advanced by the HSE that the making of any of the declaratory orders sought would infringe on the separation of powers. The court also rejected the suggestion made by the HSE in respect of the CFA seeking an interim care order or special care order in respect of the child. The judge stated that “[i]n truth the suggestion that the child would be detained in a special care unit pursuant to a special care order would not just be disproportionate but at the extreme end of disproportionate”.
The judgment also noted the number of children waiting for a residential placement and he referred to the Joint Protocol between the CFA and the HSE and that there can be no question of simply deciding that because a child has a disability s/he should be brought into care. The judge held as follows:
“[b]ringing Miss X into care would not in any way advance her cause. Bringing Miss X into care is not what is required in this case. What is required, when the within proceedings are distilled to their essence is the need for the provision of disability services to a child – and such provision, without a shadow of legal doubt, is the legal responsibility of the HSE. The CFA can support the HSE in the provision of that service (and have been a consistent presence in this regard when it comes to the case at hand). However, it is not within the CFA’s responsibility or power or function to provide disability services: that is entirely for the HSE – and all of the reports from the HSE’s own assessors have indicated what is required of the HSE when it comes to Miss X and that is the provision by the HSE of a suitable disability service to Miss X.”
For the reasons outlined in the written judgment the Court made the following declarations in respect of the child:
(i) a declaration that Miss X’s current and/or continued placement in [Stated Name] Hospital is not in her best interests and is detrimental to her welfare;
(ii) a declaration that Miss X’s current and/or continued placement in a hospital setting, namely in [Stated Name] Hospital has resulted and is resulting in a disproportionate and unlawful interference with the constitutional and human rights enjoyed by Miss X as a minor and a person with one or more disabilities, namely (a) her right to have decisions made in her best interests, and/or (b) her right to dignity, and/or (c) her right to personal and bodily integrity, and/or (e) her right to privacy;
(iii) a declaration that in placing Miss X in a hospital setting, namely in [Stated Name] Hospital and/or by failing to prevent her placement in the said hospital and/or by failing to facilitate her discharge to a safe and suitable residential placement, the HSE has disproportionately and unlawfully interfered with Miss X’s constitutional and human rights, namely (a) her right to have decisions made in her best interests, and/or (b) her right to dignity, and/or (c) her right to autonomy, and/or (d) her right to personal and bodily integrity, and/or (e) her right to privacy;
(iv) a declaration that it is in the best interests of Miss X and necessary in order to promote her health and welfare that a residential placement be immediately identified for her in order to vindicate her rights pursuant to the Bunreacht.
The judgment also included the following letter from the judge to the child explaining what the judgment means for her:
“WHAT DOES THIS JUDGMENT MEAN FOR You?
Dear Miss X
In the previous pages I have written a long judgment about your case. The judgment is full of legal language and you may find it a bit boring to read or, at points, difficult to follow. I am always concerned that applicants in child law proceedings – that’s you – should be told in simple language what I have decided in a judgment that affects them. So that is why I have added this note to you. Everyone else in the case will get to read this note but really it is addressed just to you and written for your benefit.
Because lawyers like to argue over things, I should add that this note, though a part of my judgment, is not intended as a substitute for the detailed text of my judgment in the previous pages. It seeks merely to help you understand what I have decided in what is your case. Your lawyers and/or [your GAL] will explain my judgment in more detail to you.
By the way, I have addressed you above, and I refer to you in my judgment, as ‘Miss X’. That is because nobody needs to know who you are. So I’m not being rude – I know who you are; I just think it best not to let everyone else know your business.
I am sorry that you are unwell and I hope that you will get better as soon as possible. It will take time but please don’t give up. Everything I’ve read about you tells me that you are an intelligent person with lots of potential for a happy future. So if you do what your doctors tell you to do, my sense (for what it is worth) is that things can only get better for you.
So, what have I decided? Your mother and the lawyers she has engaged, all acting on your behalf came to court complaining that the manner in which you have lately been accommodated in hospital is unlawful. I think that, fundamentally, they are right (though I do not agree with them in absolutely every respect). In short, what all this means is that you have won your case in the High Court. I will now proceed to make certain orders to reflect the fact of your win. Again, your lawyers and/or [your GAL] will explain in more detail what all of this means in real terms. They will also likely want to discuss with you what next steps you might wish to take.
I wish you the very best in what I hope will be a long and happy life.
Yours sincerely
Max Barrett (Judge)
Although the judgment was delivered on 18 October 2021, an issue arose in respect of the publication of the judgment on the Courts website and it was not published or publicly available until 30 March 2023 following the receipt of a further report from the guardian ad litem and a further hearing in March 2023 (Y and Anor v Health Service Executive [2021] IEHC 803). The issue of compensatory damages in respect of the child remains outstanding.
Following the delivery of the written judgment and the making of the declaratory orders by the Court the child was not immediately moved from the hospital placement and remained there for a number of days. The applicants issued a Notice of Motion against the HSE seeking a mandatory order directing the HSE to identify an appropriate placement and to transfer the child to that placement and it was submitted that the child’s current placement in the hospital “cannot be allowed to persist” and it had been several days since the declarations had been made and the situation “hasn’t been remedied”. The court was also told that the child’s behaviour had started to escalate. The child was threatening to staff and was spitting and throwing water and shouting at patients out of “boredom and frustration”. The court was told that the HSE were trying to identify a placement and a witness outlined the efforts made and placements contacted and had even looked at St Andrews in the UK for highly complex and challenging cases but that a child from Ireland had not been placed there for some time. The court was told of the efforts made with various service providers both in Ireland and in Northern Ireland to identify an appropriate placement and that any transition had to be done safely with a transition plan. The court was told of a proposal and timeline of twelve days for a transition to a potential placement but that the transition out of the hospital to the placement was not immediate and that a positive transition was important to make sure the placement was sustainable. The HSE witness was asked in cross examination if there was any alternative plans or Plan B if the potential placement was withdrawn.
The judge said that it was “disturbing” that the child was still in hospital but noted that efforts were being made to identify an alternative appropriate placement and he adjourned the hearing for a number of days and ask that that efforts continue as “plan B may become plan A” and that on the next date he expected to be told of further enquiries made and “perhaps further afield”.
On the next date an affidavit of the child’s father was before the court outlining some concerns and described a recent visit to the child as “very traumatic” and significant deterioration. The court was told that the proposed placement was not available for another eight days and that a further eight days was wholly unsatisfactory given the length of time the child had been placed at the hospital. It was submitted that the child was at the hospital inappropriately and remained there inappropriately and that a further eight days was “equally inappropriate”. The court was told of concerns that there was still only one option and no plan B and the parties were profoundly concerned that the option was no more than a plan and there was no certainty. The HSE outlined that there was a placement identified and evidence was given as to why it could not be ready for a number of days due to the HIQA registration and training for staff and people currently at the placement on respite and as other families depended on that respite it was not that easy to discharge them. The barrister for the HSE said that it was “unfortunately the reality of the situation” and that everyone acknowledged that the child should not stay any longer than absolutely required and they were working towards moving the child as quickly as possible and there was some preparatory work required around the placement.
The court was told that eighteen service providers had been approached including in the UK and elsewhere but it was not on affidavit and the HSE shared concerns of the child going abroad but that it cannot be ruled out and it was understood why it was suggested by the court. The barrister said that the HSE were doing everything they can to change the placement and that a new placement had been identified and they were working towards it and there was no merit in bringing the matter back before court every day that was a certain “reality of wasting time and costs”. The applicant wanted the court to “keep a close eye on it” and the barrister said that “quite frankly past performance is a likely indicator of future performance” and that although there was hope on the horizon there still needed to be parallel planning as it could all have “evaporated in a puff of smoke”. The barrister for the applicants emphasised that the court had already declared that the child’s constitutional and personal rights had been infringed and continued to be and that it was therefore not correct to say that bringing the matter back before the court would be wasting the court’s time or costs.
The judge noted that the HSE said there was an identified placement and it should be on affidavit the efforts being made with parallel planning. The judge adjourned the matter for a few days and said that bringing the matter back before the court was not time wasted as “incredibly serious conclusions” had been made about how the HSE “had treated this child” and that he was not entirely sure if the HSE fully appreciates the seriousness of the findings. The judge said that he found the reading of the affidavits upsetting and he was “shocked on reading them and that the High Court of Ireland would be keeping a close eye and it was “[t]ime for the HSE to realise the seriousness of what was said in my judgment.” The judge said that he was not convinced the HSE were treating it as seriously as it should.
On the next date before the court a number of affidavits had been exchanged between the parties including an affidavit in respect of the identified placement and details of the transition plan and the efforts made by the HSE including in respect of placements outside the jurisdiction which were not available or not able to provide the services required. The court adjourned the matter to the following week with liberty to apply to the court.
The child was subsequently moved to the identified placement and the court was informed of the plan going forward.
