This case concerned a teenager (A) who ended up in a general hospital following a self-harming incident, and for whom a suitable therapeutic placement could not be found for five months. Eventually the teenager was placed in special care.
The child had been under a full care order since 2019 following a bereavement and had a diagnosis of complex post-traumatic stress disorder. In Spring 2022, A’s foster care placement had broken down. In Summer 2022, A was detained in the paediatric wing of a general hospital [hospital X] under wardship orders from the High Court for three months due to self-harming, and where it was thought medical intervention might be needed. The teenager was in an acute baby ward within the paediatric ward.
During the time in that hospital A required significant medical supervision for escalating patterns of self-harming and was subsequently detained in a children’s hospital [hospital Y] and then placed in special care. The case returned repeatedly to the High Court due to concerns that A was not in an appropriate placement. The HSE’s Child and Adolescent Mental Health Service (CAMHS) considered the child did not meet the criteria for admission to its service. The GAL said A was “a product of the situation of the interplays between the various agencies”.
Paediatric wing of hospital X
The case initially returned to the High Court, because the teenager was thought to have ingested something dangerous while in Hospital X. Two clinicians from this hospital considered it necessary to keep A in this hospital due to the danger of self-harming.
The court heard there was a staff ratio of two-to-one for the young person at night and three-to-one during the day. The clinician in this hospital said that the very best care was being provided for the teenager and the “safety and intervention that is within our capacity to deliver, the hospital has gone to extreme lengths to meet this young person’s needs, and will continue to work for [A’s] best interests at all times.”
The young person themselves considered they needed help and felt that they would get it in a CAMHS in-patient unit, but CAMHS had assessed A as not coming under its criteria. The consultant had felt it was beneficial for the CAMHS team to explain their decision to the teenager, whose fear was that they would “just be forgotten about”. The CAMHS team visited the teenager in the hospital during the week to deliver the outcome of their assessment to. The consultant said the purpose of their visit was “to explain the rationale to [A], it was very difficult for [A] to process this information of not being accepted there. We wanted to try and minimise therapeutic risk and put it into a positive light. [A] is an intelligent young person and seeks to understand the rationale behind decisions.” The CAMHS staff had reassured A that they would not be left without support.
However, after the meeting the teenager had been very tearful and had “kept repeating themes of ‘please refer me to any unit, a private unit, I need help’.” The doctor said: “We continue to try and support [A] while acknowledging that we didn’t have the facilities of the special care unit or a multi-disciplinary team similar to that type of unit”.
The President of the High Court asked: “Does yesterday shift the ground for another referral (to CAMHS)?” The consultant replied that she had advised the clinical director and team in the CAMHS unit of what had happened. The hospital still needed the court’s oversight, she advised, as they were “limited in services and don’t have access to a multidisciplinary team. Young people in an in-patient unit may have opportunities for therapeutic leave, we don’t have that here, but we will continue to do what we can and update the [in-patient unit].”
The barrister for hospital X asked her what sort of order should be made today, should they build in a provision for transfers to [hospital Y, a children’s hospital] in an emergency, “knowing a real possibility existed that a very serious attempt may be made again by [A]?”
The second clinician told the court that hospital X did not have paediatric surgeons and were therefore “incredibly limited with onsite capacity. We have adult surgeons but they do not cover our service routinely”; the adult anaesthetic service was limited, “we don’t have the training, [A] is on an acute baby ward, within a paediatric ward, the mental health concerns are the real driving factor for all these actions”.
She added that the identified bed in the residential placement would not be ready for another week or ten days and while there was no acute immediate surgical need, that could change in half an hour and “we could be in trouble”.
The High Court President remarked that it was a very difficult situation, the hospital consultants were clear what was in the teenager’s best interests, “I can’t force [the CAMHS in-patient clinic] in relation to what they do, their view is against giving [A] the place there.” He noted that that may change in light of the “existing crisis, [A] might ingest something that would lead to a critical bleed. It looks as if it’s a review in a week’s time with additional orders to exist. It’s very grim.”
The barrister for the CFA told the court the CFA acknowledged the delays in obtaining a placement for the teenager, however their onward residential placement was dependent on two other young people being ready to move on. A backup placement had been identified but it was felt that the other location was more suitable as A could stay there long term. However, plan B would go ahead in the event the preferred residential placement was not available and a senior clinical psychologist who had previously attended a professionals’ meeting regarding the teenager would be attending a meeting with staff to see what the therapeutic requirements were.
The solicitor for the guardian ad litem (GAL) said that the GAL felt it was important for the teenager to fully understand the conditions on which the proposed residential placement may become available, “because if [A] is on board and then [the placement] disappears, it would be another huge blow on top of the blow of recent times. Each time [A] feels let down and it’s a big trigger in escalating their behaviour.”
The GAL was of the view in her report that the teenager was “an outstandingly bright young person and can understand legal issues and demonstrates a remarkable understanding of where [A] fits into this. Their ability needs to be safeguarded so [A] can deliver on that potential.”
The GAL added that the teenager was “very in tune with the need for their circumstances to deteriorate significantly” in order for them to leave the hospital ward. However, she did not have a placement to go to currently and “[A] is a product of the situation of the interplays between the various agencies and is seeking a way out in their own manner and that is very regrettable.” There were variables in the transition plan to the residential placement that the GAL and the teenager had no control over in terms of planning, therefore contingency plans were needed “but nonetheless [A] needs to be encouraged to engage in that process”. The GAL hoped that the CAMHS in-patient service would review the referral or that the teenager would stabilise, but for now her safety had to be maintained within an environment that A clearly should not be in.
The judge remarked that it would be “very hard to get [A] to buy into [the residential placement] when [A] s of the view that [the CAMHS in-patient unit] holds the silver bullet… in any event [A] is not getting the therapeutic support [A] needs now, I can sit any day to deal with this.”
The judge listed the case to return in one week and adjusted the court orders for transfer to surgical care or transfer to a psychiatric setting, he also provided for leave from hospital X so that the teenager could visit the residential placement if possible in order to give them some hope [that she would have a long-term onward placement from foster care].
Residential placement
Twelve days later the teenager was discharged from the hospital as the residential placement was ready. However, A spent only one night there due a self-harming incident and was re-admitted to a children’s hospital unit (hospital Y).
Children’s hospital (Y)
The case returned to court and hospital Y sought to extend the wardship orders for the teenager’s continued detention there for two weeks. A further referral to the CAMHS in-patient service was being made and a meeting was due to take place with the professionals of the residential placement. The matter was being kept under close review.
The barrister for the CFA told the court that the residential placement was the appropriate mainstream placement for A and that “the majority of residential placements were mainstream, the hope is that [A] will be in a position to manage in the community.”
The solicitor for the HSE told the court that the HSE had periodic involvement in the case. If the teenager was admitted to a CAMHS unit, it would be the in-patient unit that they had previously been referred to [but which had not accepted the referral]. The question was whether A had a mental health disorder, because admission to the unit required a therapeutic element to it.
Orders were made continuing the wardship orders for two weeks.
Two weeks’ later
When the case returned the judge stated that he had read the psychiatric report from hospital X and described what he had read as a “disastrous state of affairs, the current situation is really disastrous”.
The barrister for the hospital told the court that the girl’s treating psychiatrist from hospital X was not in a position to stand over discharge from the children’s hospital [hospital Y] because [although A was fit to be physically discharged] they needed a psychiatric in-patient placement before going back to the residential placement. The residential placement was limited in the supports it could provide and no additional supports could be made available. “At the moment the least worst option is [hospital Y, the children’s hospital].”
The judge noted it was no longer medically necessary for the teenager to be there and that A was sharing a room with a young child with an injury. The barrister responded that “we’re at an impasse, we all agree it’s not appropriate, but what we can’t agree on is what the next step should be.”
The solicitor for the GAL told the court that a second psychiatric report [from a CAMHS in-patient unit] did not accord with her treating psychiatrist’s report that the teenager should be in an acute setting. The second psychiatrist’s view was that A should be afforded the opportunity to function in a community setting and the initial CAMHS in-patient team shared that view. The solicitor for the GAL added that the second psychiatrist had said “we may see [A] becoming institutionalised.” The solicitor told the court that he had asked the clinicians to meet to try and resolve the conflict or “we will be in a cycle of in and out, frequent admissions and discharges.”
The President of the High Court commented that “the least worst option is potentially disastrous.”
The solicitor for the GAL told the court that a third psychiatrist, a HSE child and adolescent psychiatrist, was going to do an assessment of the teenager “it may bridge the impasse, all the professionals are operating with their best intentions.”
“I have no doubt about that,” replied the judge. The solicitor for the GAL added that the HSE child and adolescent psychiatrist [the third psychiatrist] had mentioned there could be “a referral possibly to special care, but A doesn’t meet the profile of a child to be admitted to a detention centre, within his experience of the profile on the list.”
The barrister for the CFA told the court that the residential placement remained open to the teenager long term and was appropriate within their profile. However, the difficulty from the CFA point of view was that it did not have any medical practitioners on its staff, but the CFA was open to looking at extra supports being put into place.
The wording of the current order allowed the teenager to be discharged to the residential placement in the event there was clinical agreement, without the matter having to come into court. The barrister noted there was impasse between the psychiatrists.
The solicitor for the HSE told the court when the matter had last been before the court, the CAMHS in-patient service had received a further referral from the consultant in hospital X, her fifth referral. Clinical opinion in CAMHS was that the teenager did not have a mental health disorder under the Mental Health Act, therefore the clinical opinion was to not admit A to the in-patient unit.
The second psychiatric report, which had come from a CAMHS psychiatrist, had done a longitudinal assessment of the teenager and it also concluded that A should not be treated for a mental health disorder or admitted to the CAMHS unit. Therefore, from the perspective of the CAMHS inpatient units, the teenager did not meet the threshold for being admitted and it would be counter-therapeutic to admit them. The three clinicians had been asked to meet, in order to assess what supports needed to be put in place for the teenager’s safe discharge from the children’s hospital.
Institutionalisation was a worry for the treating psychiatrist in hospital X. The solicitor for the HSE felt that the teenager “seems to be fixated on getting into a CAMHS in-patient unit, when they don’t have a mental health disorder, these are places for exceptionally unwell people.”
The President of the High Court listed the case to return the following week and he thanked all the staff caring for A, in particular her treating psychiatrist. He noted the clinician had stated that “in the absence of inpatient care, A is at high risk of suicide and self-harm, he recommends a short, structured period in a specialist therapeutic service such as [named unit]. The other doctors say it would be counter therapeutic to admit [A] to [the CAMHS unit], that [A] doesn’t suffer from a mental disorder, and therefore it would not be therapeutically beneficial.”
A second CAMHS psychiatrist “had prepared a very comprehensive report in an extremely tight timeframe and found that placing [A] in an inpatient unit would increase their institutionalisation and decrease their coping ability,” noted the judge. The GAL was not supporting continuing the order in the children’s hospital [hospital Y] and believed it was “profoundly disturbing that someone in [the teenager’s] position remained [there], the warnings are there of the likelihood of A becoming institutionalised, in the circumstances I am very grateful to the medical practitioners involved.”
The judge continued the orders, stating “the only option that I have, the least worst option in the circumstances, is to continue the orders but to do so for the shortest period of time”, in order to allow the HSE child and adolescent psychiatrist to carry out his assessment. “The current situation is untenable and it’s with a really heavy heart that I continue the order when I know it’s not the appropriate place but A has no-where else to go.”
Three weeks’ later
When the President of the High Court heard the case again it was three weeks later and by that point the young teenager had been approved for special care, however there was no bed available. Therefore, a continuation of the orders providing for A’s detention was sought by the CFA. The solicitor for the GAL told the court that the teenager remained in the care of the children’s hospital which was not an appropriate placement for a “young person with these needs”. A medical visitor had concurred that A required inpatient treatment and had recommended special care. The GAL solicitor said that the appropriate person to hear from was the solicitor instructed by the CFA, but “it may be that proceedings will have to be brought against the CFA.”
The solicitor for the CFA referred to the impasse between the teenager’s treating psychiatrist from hospital X, who had advised that A needed inpatient CAMHS psychiatric care, and the CAMHS inpatient unit team saying “A did not”. The CAMHS psychiatrist’s report of mid-August had advised that “special care is the best option”. The report of the social work team leader outlined the instances of self-harm since the last court date. “The CFA were charged with the decision of whether the child requires care in special care. Towards the end of August the application had been put together…the difficulty now is that there is no special care bed.”
The barrister for the CFA named all of the special care units and explained that they were all at full capacity and that no bed would be available until a child was discharged from one of them. It was likely to be a question of weeks rather than days. “We might all collectively take the view that there should be a policy of spare capacity in the special care units,” he noted and told the court that he understood the possibility of a notice of motion to judicially review “if a bed isn’t found for this child next week, we’re not a position anyone desires, I would like to tell the court that I have just finished drafting a special care order but I’m unlikely to have anything in way of an update for about a week.”
The solicitor for the GAL explained that as a quorum had not been reached to convene a special care committee meeting in mid-August when the case had come before the sitting judge, the meeting was held over until a week later when it was unanimously determined A met the criteria for special care. This was now a “10-day old determination” and the CFA had a statutory obligation to pursue an application for special care, he noted that he would soon have to pursue a relief against the CFA seeking mandatory orders requiring special care. He had written to the instructing solicitor for the CFA in that regard.
The GAL solicitor said: “[A] is being failed by the State as a consequence of the failure to provide a bed for her, as a consequence we will [soon] have a JR live, interim care proceedings live, wardship proceedings live, this is a sharp warning to [the barrister for the CFA], and I fully accept their limitations but I have to bring this application, I regret it has to be done but it does. Further resources are needed to provide for these children’s needs. [A] was in a not dissimilar position in [hospital X]. There will be an application failing [the CFA] adhering to the timeline set out.”
“What can [the CFA] do if there is no bed?” asked the President of the High Court. “That’s the challenge, judge,” replied the solicitor for the GAL, “the purpose behind the application is to force the Agency. They will plead it is not appropriate for the court to force an allocation of resources, the purposes of the application, the refinement of it into a judicial review application, will force them to make the application, and other than to reflect and cite resources but what it will do is elevate [A] to the top of the list for the next place in special care.”
The barrister for the CFA pointed out that the special care placements were operating at capacity, which was the reason for no bed being available.
The judge continued the orders for 10 days. The judge summarised the proceedings and noted that the solicitor for the GAL had written to the instructing solicitor for the CFA threatening separate [judicial review] proceedings if a bed was not provided to the teenager, “not an idle threat he says but designed for the very express purpose of securing a bed in a unit. I have considered all of the evidence. I have no alternative but to continue the existing orders, it really is a scandal that there is nowhere to provide for [A’s] existing needs, it’s outrageous that no place is available for a young person in her position, it really is quite outrageous. I will continue the orders [for 10 days].”
The teenager had now been in the children’s hospital for over two months.
Special care
On the next court date the barrister for the CFA had been instructed in the previous few minutes that a bed had become available in a special care unit. He had instructions to make an application for an interim ex parte special care order, the affidavit was being drafted with a view to having it sworn and it was his intention to use the psychiatric reports from the wardship proceedings, in particular the report of the CAMHS psychiatrist and the teenager’s treating psychiatrist from hospital X, where A had stayed under wardship orders for three months. The barrister told the court that he would move the special care order under paragraph 12, Part IVA of the Child Care Act 1991, before or after the wardship list, fundamentally the special care bed was now available.
The judge extended the wardship orders for one day so as the CFA could advance their application the following day. The following morning, on application to the High Court, an ex parte interim special care order came into force for one week, allowing for the wardship order to be discharged at 8pm that evening to ensure the continuity of lawfulness for detention at the children’s hospital and a ‘for mention’ listing of the case before the President of the High Court was given for October. The teenager was discharged from the children’s hospital into special care the next day.
The following week the barrister for the CFA moved an ex parte interim special care order application on consent. The barrister for the CFA told the court that A’s mother was deceased and the father was consenting to the special care order and was legally represented. While under the care of the children’s hospital, it was the view of the consultants that the teenager required a secure facility other than a paediatric hospital. The opinions of two psychiatric consultants from two CAMHS units were obtained and both institutions had opined that the teenager was not suffering from a mental health disorder and therefore not suitable for treatment in a CAMHS in-patient unit.
An assessment had recently been conducted on the teenager by a HSE child and adolescent consultant psychiatrist who was very well known in special care. His reports advised of self-harm relating to complex trauma and post-traumatic stress disorder. The psychiatrist advised that the teenager required a period of time in a secure setting, secure care or a hospital admission, and that while A did not present with a psychiatric illness that required in-patient treatment, they did require consistent care to develop their own capacity to manage their feelings, in a setting such as special care.
The barrister for the CFA told the court that the Agency had “taken all steps reasonably open to it to make the decision that special care is required.” The interim special care order was made ex parte and could not be made for longer than a period of eight days, including the first and last day. The Minors’ Review List was sitting in the morning.
The barrister for the GAL told the court that the GAL had been appointed in respect of the the ex parte interim special care orders the previous week. She had also been appointed to the child since last summer in respect of the foster placement breakdown and had seen A on five occasions. “She has two roles, to advise the court on [A’s] own wishes and feelings and to advocate for [A] on their best interests as a matter of her own objective judgment.”
The GAL’s report stated that while A understood why they were going into special care, the teenager was “a bit confused about its purpose”. It was the GAL’s “objective view that it is what [A] needs to provide for their welfare and that no other type of care will provide what is required at this time.”
The GAL told the court that the teenager thought special care would be good and understood that they were likely to be staying in the special care unit for three months.
The judge granted the order sought, accepting the content of the GAL report, that the teenager was of the view that the care anticipated in the special care unit “will be to their benefit and [I accept] the view of [the HSE child and adolescent psychiatrist] that [A] seeks attachment figures and seeks security, three months in [the special care unit] will provide [A] with security and the GAL says no other form of care will suffice for the care of [A].”
He concluded that there was reasonable cause to believe the teenager was at risk and needed special care, he therefore made the order “to protect [A’s] life, health and safety.” He noted this was an interlocutory special care order and that it was the intention of the Agency to make a determination under section 23F of the Child Care Act 1991 to apply for a full special care order and that determination would be the next day.
The following day, a full special care order [the duration of which is three months] was made in respect of the young teenager, whose foster placement had broken down five months previously.
