A severely disturbed man, whom experts agree is not mentally ill within the meaning of mental health laws, is to be brought from a British care unit to be detained at the Central Mental Hospital following an apparently unique High Court decision
Mr Justice George Birmingham’s ruling in the case of the 25-year-old man, “a person of unsound mind not so found” who was placed in care at the age of eight, was today described by lawyers for the HSE as “one of the most significant in adult disability cases in the history of the State”.
In a reserved judgment, the judge said he was prepared to grant the HSE’s “very unusual, if not entirely unique” application for an order to detain the man in the CMH.
He did so after finding the man lacked capacity to make decisions in relation to his treatment, care and welfare and that his best interests would be served by being subject to an appropriate clinical regime in an environment of therapeutic security in the CMH.
The judge said he was prepared to make the order in exercise of his inherent jurisdiction and while it was expected the man would require to be detained for a long time, he would ensure the detention was reviewed regularly.
He also asked the HSE to facilitate, as sought by the man’s sister in her capacity as his court-appointed guardian, an independent professional report on the suitability of the CMH for the man.
Felix McEnroy SC, for the HSE, said the judgment was “one of the most significant in adult disability cases in the history of the State” and meant the courts could move to protect vulnerable adults in need of care.
The judge has agreed not to make final orders in the matter before next week.
Earlier, the judge noted the man displayed learning disabilities and challenging behaviour from childhood and was excluded from national school at the age of four because of extremely violent behaviour. Other school placements failed and, from the age of eight, he was placed in a series of residential institutions linked to a religious order. He recently received a €50,000 award from the Residential Institutions Redress Board.
He spent six years in a specially dedicated school but set fire to it in 2004 which led to a psychiatric admission. Other admissions followed.
At the age of 18, it was concluded no suitable placement existed for him in Ireland and he was placed in various units in Britain after contact with the Mental Health Services there.
Ultimately, he was transferred to a UK care agency and detained at facilities operated by them but his behaviour remained very challenging with many incidents of physical aggression and incidents of sexually inappropriate comments and gestures.
The man’s detention in accordance with English mental health legislation appeared to be permitted as that legislation contained a broader definition of “mental disorder” than applies here, Mr Justice Birmingham noted.
The man and his family wanted him back in Ireland and the HSE arranged for the man to be assessed by the clinical director of the CMH, Professor Harry Kennedy.
He found the man has intellectual disability and autism spectrum traits and arrested or incomplete development of mind as a result of which he engaged in abnormally aggressive and serious irresponsible conduct and lacked the capacity to manage his financial affairs and welfare in his own best interests.
Mr Justice Birmingham said he was entirely satisfied to accept as correct Prof Kennedy’s view the man requires care and treatment in conditions of therapeutic security at a medium to high security level and wished to act on that conclusion.
He found it was in the man’s best interests to remain in care and to be cared for in Ireland, the judge said. This also accorded with the wishes of the man and his family.
He found the CMH was the only place here where such a therapeutic environment could be provided and also noted there appeared to be no realistic expectation of any dramatic recovery for the man, meaning a lengthy period of care and detention appeared likely.
The issue then was whether the court could make the orders sought by the HSE, the judge said. In that regard, the court had to consider relevant provisions of the Constitution and European Convention on Human Rights, including relating to liberty and personal rights.
The judge noted the ECHR has said a person “of unsound mind” cannot be deprived of liberty unless they are reliably shown to be of unsound mind and have a persistent mental disorder warranting compulsory confinement.
In this case, the adult lacked the capacity to make a decision on his future and he, his family and the HSE were agreed as to what was in his best interests. In those circumstances, where all sides were of the same mind, the court’s task was less daunting.
