Teen with personality disorder to be released from involuntary detention
A young woman suffering from a borderline emotionally unstable personality disorder has been found to have legal capacity to make decisions about her own care and is to be released from involuntary detention in a heath facility in Scotland and returned to Ireland.
The woman, identified as KW, has a long history of sudden and unpredictable episodes of self-harm, and had been held for approximately four years in various mental health institutions within Ireland and the United Kingdom.
Her case had periodically been reviewed by the Courts, with issues arising due to the fact that when she turned 18 in 2015, she would no longer be subject to the Court’s jurisdiction regarding children.
This raised difficulties due to her diagnoses as suffering from a personality disorder, which is expressly excluded from the Mental Health Act 2001 for the purposes of involuntary detention.
Thus, if KW was shown to have legal capacity, there would be no statutory power to detain her, in comparison to England and Wales, where involuntary detention can occur in cases of personality disorder.
In the lead up to her KW’s 18th birthday, this issue gave rise to complex legal questions, exacerbated by her own wish to return to Ireland, and particularly to attend a family wedding within Ireland.
The first issue being whether she had capacity to make decisions regarding her care and treatment, and the second being that if she was found to have capacity, did the Court have any jurisdiction to detain her involuntarily in order to vindicate her constitutional right to life.
These issues had led the Health Service Executive seeking and obtaining an order detaining KW within a facility in St. Andrews, where she had been placed due to the availability of relevant treatment and the security of the environment there, until a determination could be made on these legal issues.
In that case, O’Hanlan J found that KW lacked capacity, but that intervention by the Court should be proportionate, and that therefore KW should be returned to Ireland, in accordance with her wishes.
However, an incident in which KW considered suicide raised concerns, with the result that the care plan drawn up for her by the Health Service Executive was revoked, with the view being expressed that no appropriate treatment centre existed within Ireland.
The present case, before the High Court, initially concerned a motion in which the Health Service Executive sought an order that it was no longer obliged to return KW to Ireland, as well as an order continuing her detention in St. Andrews.
However, in light of new evidence, this was changed to a motion seeking an order for the immediate return of KW to this jurisdiction as a voluntary patient.
Delivering the judgment, Mr Justice Noonan observed that he had initially been concerned at having been asked to reverse the order of another High Court Judge made barely three months before.
However, significant new evidence had emerged which had not been available to O’Hanlan J when she made her decision, therefore he found himself entitled to consider matters afresh, this application being, like those before it, also an interlocutory application.
He noted he decision of Lord Denning MR in Purcell v. Trigell Ltd. 3 All E.R. 671 and also the decision of Quirke J. in Lismore Homes v. Bank of Ireland Finance IEHC 212 which support the proposition that the Court is entitled to review interlocutory orders or vary them, as necessary.
The Judge heard evidence from a number of medical professionals, as well as KW herself.
He particularly noted the evidence of Prof Brendan Kelly, who expressed a view that the “custody and detention of persons with personality disorder is very rarely therapeutic”.
Prof Kelly felt that KW had capacity, although that capacity was occasionally lost when she went through periods of acute distress. He noted that KW had refrained from self-harm for a period of six to eight months, and that he believed there was an organisation within Ireland that could provide her with the therapy she required.
The Judge also noted evidence from Prof. Kennedy, who supported KW’s return to Ireland, despite the risks involved, and felt that her continued detention in St. Andrews was becoming counterproductive.
Evidence was also heard from KW herself. The Judge stated that she “impressed me as a very bright, articulate and intelligent young woman of whom any parent would be justly proud”.
He found that she presented as an adult who had capacity to make decisions about her own care and treatment, and therefore was “satisfied that the Court does not possess continuing jurisdiction to involuntarily detain KW on an ongoing and indefinite basis”.
However, he also found that the Court had jurisdiction to transition KW from a detained environment to being a voluntary patient, citing N v. HSE 4 I.R. 374 and F.X. v. Clinical Director of the Central Mental Hospital IESC 1 as evidence that “the Court is entitled and obliged to ensure that the discharge occurs in a controlled and safe manner so that KW’s Constitutional rights, and above all, her right to life, are properly and fully vindicated”.
In light of KW’s desire to attend a family wedding, which the Judge considered “the informed decision of a capacitous adult”, an order was made to transfer KW to Ireland the following day, at which time she would become a voluntary patient within Ennis psychiatric hospital, who would provide staff to accompany her to the wedding.