District Court authorizes assisted admission for 16-year-old refusing treatment under Mental Health Act 2001.

2018 [IEDC] 03

AN CHUIRT DUICHE THE DISTRICT COURT

Mental Health Act 2001

THE HEALTH SERVICE EXECUTIVE

APPLICANT

AND

S. D

RESPONDENT

Introduction

1. This is an application under section 25 (1) and (4) of the Mental Health Act, 2001 brought by the Health Service Executive (HSE) in

respect of the child K who appears to the Court to be aged 16 and who ordinarily resides with her parent within the jurisdictional area

of the District Court District.

2. The HSE seeks an order for the involuntary detention of K in an approved Child and Adolescent Mental Health facility within the

meaning of Part V of the Mental Health Act, 2001. K has a long history of low mood, anxiety, suicidal ideation and a history of two

drug overdoses, deliberate self-harm, cannabis use and disturbed eating and sleep pattern. K has become resistant to advice,

intervention and medication from the CAMHS team and has also ceased engagement with the Assessment Consultation Therapy

Service (ACTS) provided by Tusla. Her parent has become increasingly alarmed by K’s more recent bizarre behavioural outbursts,

visual and auditory experiences and self-harm events. K’s parent does believe that K is capable of making rational and reasonable

decisions for herself by reason of her state of mind at this time.

3. K has also refused to be admitted for treatment as a voluntary patient and refused to submit to a medical examination by a Child

Psychiatrist for the purposes of a formal diagnosis.

The issues

4. There has been no prior examination by a Consultant Child Psychiatrist that K is suffering from a mental disorder within the meaning

of the Mental Health Act 2001. K is sixteen years old and so s. 23 of the Non-Fatal Offences Against the Person Act 1997 is engaged.

“23.—(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental

treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective

as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective

consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian.

(2) In this section “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of

diagnosis, and this section applies to any procedure (including, in particular, the administration of an anesthetic)

which is ancillary to any treatment as it applies to that treatment.

(3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if

this section had not been enacted.

5. It is impossible to make a formal assessment and diagnosis of K’s current mental health in the face of K’s

unwillingness to submit to such an examination. K’s parent is deeply concerned about K’s welfare and best

interests and believes that K’s mental health has deteriorated very considerably recently and that K is actively

delusional and could cause immediate and serious self-harm to the point of death while in this state.”

The Law

6. Deprivation of liberty of a child is a serious infringement of the right to personal liberty as guaranteed by the Constitution. Any

deprivation of liberty must be in accordance with law and necessary in order to achieve the legitimate objectives of the Mental Health

Act, 2001, in a proportionate manner. Section 3 of the Mental Health Act, 2001, stipulates that:.

“3.—(1) In this Act “mental disorder” means mental illness, severe dementia or significant intellectual disability

where—

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing

immediate and serious harm to himself or herself or to other persons, or

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so

impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in

his or her condition or would prevent the administration of appropriate treatment that could be given only by such

admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to

benefit or alleviate the condition of that person to a material extent.

(2) In subsection (1)—

“mental illness” means a state of mind of a person which affects the person's thinking, perceiving, emotion or

judgment and which seriously impairs the mental function of the person to the extent that he or she requires care

or medical treatment in his or her own interest or in the interest of other persons;

“severe dementia” means a deterioration of the brain of a person which significantly impairs the intellectual

function of the person thereby affecting thought, comprehension and memory and which includes severe

psychiatric or behavioural symptoms such as physical aggression;

“significant intellectual disability” means a state of arrested or incomplete development of mind of a person which

includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously

irresponsible conduct on the part of the person.

Not only must the person suffer from a mental disorder as defined in Section 3, but because of the illness, dementia or disability,

there must also be a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other

persons.

7. Section 4 Mental Health Act, 2001, refers to “best interests” and the need to respect the right of the person to dignity, bodily

integrity, privacy and autonomy. Section 25(14) also provides that the provisions of sections 21, 22, 24 to 35, 37 and 47 of the Child

Care Act, 1991, apply to proceedings under Section 25 of the Mental Health Act, 2001. Each case is fact specific and the Court must

give careful consideration to the rights of K under Article 42A of the Constitution and under the Mental Health Act, 2001, and

otherwise.

8. Section 25 (4) provides:

“(4) Where a health board makes an application under subsection (1) without any prior examination of the child the

subject of the application by a consultant psychiatrist, the court may, if it is satisfied that there is reasonable

cause to believe that the child the subject of the application is suffering from a mental disorder, direct that the

health board arrange for the examination of the child by a consultant psychiatrist who is not a relative of the child

and that a report of the results of the examination be furnished to the court within such time as may be specified

by the court.”

The evidence

9.

(a) Dr. T is a non-consultant hospital doctor acting as Psychiatry SHO in the relevant mental health facility that K

attended until recently. She is not related to K. Dr. T gave evidence of her previous involvement with K for

approximately eight months. She indicates that K co-operated in mental health self-care for approximately three

months but then disengaged and also disengaged from engaging with the Psychotherapist from the ACTS service.

(b) Dr. M is a Locum Consultant Child and Adolescent Psychiatrist. She is not related to K. Dr. M provided a Report

to Court and gave testimony that K is currently displaying symptoms suggestive of psychosis. She took into

account the medical history obtained collaterally. K’s mental health was formally assessed in February but has

seriously deteriorated over the past few weeks. This recent history was provided to Dr. M by K’s parent and the

ACTS Psychotherapist.

(c) SD, is K’s mother. She gave evidence of her serious concerns for the welfare of K. She has heard and seen K to

experience both auditory and visual hallucinations. K has had four recent self-harm episodes and she has heard K

expressing suicidal thoughts which K has also tried to act on. K no longer attends school and is socially isolated,

apart from one friend. SD believes that K has a firm belief that evil spirits are interfering with K’s mobile phone

messages. K has self-harmed in the last eighteen months and continues to self-harm. The family GP prescribed anti-

depressants and referred K to CAMHS but K overdosed on the prescribed medication, and subsequently took an

overdose of unknown pills which were supplied by an adult male. K’s overdose and suicidal attempt occurred prior to

her being seen by her current CAMHS team.

(d) SD indicated that K has disclosed to her that K had been sexually abused and this allegation has been reported

to An Garda Síochana however K has declined to make further statements to An Garda Síochana. K is on a waiting

list for therapeutic services and therapy to recover from this alleged abuse. SD indicated that over the last seven

months K’s mood has lowered further, K smokes cannabis as a form of self-medication and believes that both SD

and the CAMHS medical team have prescribed medication which makes K gain weight. K also engages in cutting and

is becoming increasingly aggressive in the home. While K initially engaged with the CAMHS team, this engagement

ceased after a short period. K has declined to continue to engage with the psychotherapist from ACTS and also

declined to participate in a voluntary assessment of mental health. When psychiatry and social workers conducted

home visits K declined to come out of the bedroom or talk to them. SD is seriously concerned that if K does not

receive treatment for delusional thoughts and self-harm events that K will deteriorate further to the point of

permanent injury or death.

(e) CR of ACTS is a qualified Social Worker and Psychotherapist. She has a close relationship with K and met with

her every week. For the last three months however she has been absent from her work. On her return to work she

was very shocked and alarmed to see K and the extent to which K’s demeanor and behavior had deteriorated. She

arranged a Paediatric Assessment for K regarding the effect of prescribed medication on K’s physique and weight

but K will not accept the results of the assessment. K has a distorted self- image, is very isolated and full of

anxiety. K has told her of suicide attempts made on four occasions in the last few days.

10. Consent to medical treatment would be provided by CR however K refuses to submit to assessment or treatment.

VOICE OF CHILD

11. K was not present during the hearing. There was no application brought at the request of the parties for K to be present during

the hearing or a particular part of the hearing pursuant to Section 30 of the Child Care Act, 1991. The Court does not consider it

appropriate of its own motion to request K to be present having regard to the evidence adduced and being satisfied that it would not

be in the child's interest to be present at this time.

12. The Court can ensure the best interests of K by the appointment of a Guardian Ad Litem pursuant to section 26 of the Child Care

Act and granting liberty to the Guardian Ad Litem to make such application to Court under S. 22, 37 or 47 of the 1991 Act as the

Guardian Ad Litem may deem appropriate.

TREASHOLD AND PROPORTIONALITY

13. The first two requirements of section 3(1) are disjunctive. The HSE may rely on either section 3(1) (a) or (b) but in each situation

they must also have a professional opinion that the reception, detention and treatment of the person concerned in an approved

centre would be likely to benefit or alleviate their condition to a material extent.

14. Section 3(2) Mental Health Act 2001 defines a “mental illness” to mean a state of mind of a person which affects the person's

thinking, perceiving, emotion or judgment and which seriously impairs the mental function of the person to the extent that he or she

requires care or medical treatment in his or her own interest or in the interest of other persons.

15. Section 25(1) outlines the relevant statutory threshold criteria for detention of a child in an approved centre. This requires a

diagnosis that the child is suffering from a mental disorder and requires treatment which he or she is unlikely to receive unless an

order is made under Section 25.

16. Section 25 (4) provides that exceptionally, in the absence of a diagnosis of a mental disorder, an application for detention in an

approved centre may be made by the HSE in respect of a child without any prior examination of the child. The Court may, if it is

satisfied that there is reasonable cause to believe that the child is suffering from a mental disorder, direct that the HSE arrange for

the examination of the child by a consultant child psychiatrist who is not a relative of the child and that a Report of the examination

be furnished to the court within such time as may be specified by the court.

17. Dr M who is a Locum Consultant Child and Adolescent Psychiatrist, and Dr T who is a Psychiatry SHO CAMHS conclude that K is

sixteen, with a long history of low mood, anxiety, suicidal ideation and a history of two drug overdoses, deliberate self-harm, cannabis

use and disturbed eating and sleeping pattern. K is currently displaying symptoms suggestive of psychosis, but refuses to engage with

CAMHS and most recently with the ACTS psychotherapist. Both Dr. M and Dr. T also form the professional opinion that K needs an in-

patient admission in order to make an assessment of K’s current mental state and to assess the current level of risk and identify the

most appropriate treatment plan for K. Dr M and Dr. T furthermore believe that this would be likely to benefit or alleviate the condition

of K to a material extent.

18. SD who is K’s mother and CR her ACTS psychotherapist are each of the view that K is at immediate and seriously high risk of self -

harm by reason of K’s distorted sense of reality. Every effort has been made to engage with K around this. Dr.T and the CAMHS team

made home visits to K’s home to reach out to K but K refused to engage with them when they called.

The Decision

19. I am satisfied that notice of the application herein was duly served, and I am satisfied that the Dublin Metropolitan District has

jurisdiction to hear this matter.

20. I have considered the Medical Reports filed herein and the medical evidence tendered by Dr. M who is a Consultant Child

Psychiatrist [who is not a relative of the child], Dr T the Psychiatry SHO who engaged with K initially, and it is also important to state

that Dr. T is not a relative of K. I have also considered the testimony of CR the ACTS Psychotherapist. I have also considered the

evidence of SD the mother of K.

21. I am satisfied on the evidence that there is reasonable cause to believe that K is suffering from a mental disorder pursuant to

section 3 (1) (a) and (b) Mental Health Act, 2001, and that is necessary and proportionate to carry out an assessment of K by a

consultant child psychiatrist who is not related to K and that a report of the results of the examination be furnished to the Court

within 21 days or such earlier period as is practicable to conduct such examination and assessment. I am satisfied on the evidence

that it is necessary under Section 25 (6) to direct K be admitted and detained in an approved unit for the purpose of such

examination and assessment. Although section 25 (6) does not specifically reference the ability to admit and detain a child for the

purposes of such an assessment, it would set at naught the intent and purpose of Section 25(4) in circumstances whereby K will not

engage with a CAMHS child psychiatrist, CAMHS SHO or the ACTS psychotherapist. CAMHS psychiatric and social workers called to K’s

family home but K refused to meet with them. K is isolated, alienated and vulnerable. K’s mother is seriously concerned that K will

resort to self-harm again and that she has seen K with a mark across the throat in the last few days which has caused her huge

alarm in the context of the outlined deteriorating and delusional behaviours that she has witnessed.

22. I am satisfied further that the centre outlined by the HSE an approved centre within the meaning of Part 5 of the Act.

23. The Court authorizes the assisted admission of K pursuant to Section 13 Mental Health Act 2001 if deemed clinically necessary

and appropriate.

24. Pursuant to section 25(14) I make the following Directions:

(a) I appoint RMcE as Guardian Ad Litem for K and grant liberty to the Guardian Ad Litem to apply to court to

discharge or vary this order as the GAL may deem appropriate or to apply to seek a Direction from the court under

Section 47 of the 1991 Act and give such directions in relation to the welfare of K as the GAL may deem

appropriate.

(b) Pursuant to section 25 (14) Mental Health Act and s. 47 of the Child Care Act, 1991, I direct the procurement

of a second opinion by a member of the panel of consultant child psychiatrists to also:

i. examine K and

ii. interview the consultant child psychiatrist responsible for the care and treatment of K , and

iii. review the records relating to K,

to ensure that the protections afforded to an adult under Section 17 Mental Health Act will also apply to K and to report in writing to

this court within 14 days on the results of the examination, interview and review, to which the matter has been referred and to

provide a copy of the report to the Guardian Ad Litem for the child/ legal representative of the child.

(c) The HSE to afford the Respondent mother with access to K in the hospital;

(d) The HSE shall file a Report and if appropriate a Care Plan for K following such assessment.

Warning

The Hearing of this case took place in camera [in private]. No party to the proceedings may divulge any matters arising out of the

proceedings save on the authority of the Court to do so is a contempt of court and any person found in contempt shall be liable to

penalty including imprisonment.

No one may publish or broadcast anything which is likely to lead members of the public to identify the child/children in this case unless

specifically allowed by the Court. If anything is published which might identify the child/children then the publisher or broadcaster may

also be held in contempt of court. The owner, editor, publisher or transmitter shall be guilty of an offence and shall be liable on

summary conviction to a fine or imprisonment or both such fine and imprisonment.

Judge Rosemary Horgan

27th April 2018