High Court allows HSE transfer of non-verbal respondent to placement for health assessment under inherent jurisdiction.

THE HIGH COURT

IN THE MATTER OF DD

AND

IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT

AND

IN THE MATTER OF AN APPLICATION FOR A TRANSFER

AND

AND IN THE MATTER OF AN OBJECTION BY THE FAMILY

[2025] IEHC 353

RECORD NO: HMCA 2025/113

BETWEEN:

HSE

APPLICANT

AND

DD

RESPONDENT

Ex Tempore ruling of Ms. Justice Emily Egan delivered on the 3rd day of June, 2025

Introduction

1. The present application was brought by the applicant (“the HSE”) on 5th March 2025 seeking inter alia orders permitting the transfer of the respondent from his family home in County Mayo to a placement in the South East of the country (“ the Placement ”), to undergo a structured programme of assessment to ascertain his care needs and how best to meet them.

2. The appointment of Ms. Maria Dillon as the respondent’s guardian ad litem was confirmed by the court on 6th March 2025. The application was strongly contested by the respondent’s mother. Accordingly, on 3rd April the court made orders directing affidavits to be filed on her behalf.

3. Ultimately, the application was grounded on three affidavits of Ms. Katharine Kelleher, solicitor of Comyn Kelleher Tobin and an affidavit of Ms. Laura Rochford, Disability Services Manager. Affidavits in support of the application were also filed by Ms. Dillon as guardian ad litem. The respondent’s mother swore two affidavits opposing the application on grounds which I will detail below.

4. This matter has been listed before me on eight separate occasions as a result of which I now have a significant level of familiarity with the underlying facts and indeed with some of the parties, including the respondent’s mother, whose evidence was eloquent and considered. Unfortunately, the respondent himself is, as his mother states, uncomfortable and fearful of the outside world. He is also non-verbal. Whilst I was therefore unable to hear from the respondent directly, I received evidence from the guardian ad litem, Ms. Dillon on several occasions.

5. Dr. Anita Hyland, principal clinical psychologist and behaviour analyst, prepared a report on the necessity of the proposed placement and on whether the long term benefits for the respondent outweighed the inevitable short term difficulties which transfer to the placement would cause (see paras. 27 to 31 below).

6. The matter came before the court for hearing on 15th May 2025. Further submissions were tendered on behalf of the HSE, Ms. Dillon and the respondent’s mother on 22nd May 2025.

7. I am very grateful for the detailed, empathic and practical engagement of Ms. Duggan BL on behalf of the HSE, Ms. Dillon, guardian ad litem and Mr. Twomey BL on behalf of the respondent’s mother.

Background

8. The respondent is 22 years old. He currently lives at home with his parents and his four siblings, who range in age from twenty-two to eleven years. The respondent was diagnosed with autism spectrum disorder when he was one and half years old and has a moderate intellectual disability. He also presents with expressive and receptive communication difficulties, sensory processing needs and anxiety and associated behaviours of concern. From a physical health perspective, he has also suffered severe and debilitating psoriasis, which has somewhat improved of late.

9. It is reported that the respondent attended the special unit at the local national school until the age of 11, when he was unfortunately expelled. He was temporarily home schooled and was eventually enrolled in a school for individuals with special needs when he was 16. His parents and support workers struggled to get him to go to school. He was enrolled at another school when he was 17, which he enjoyed. However, due to a worsening of his skin condition he began removing his clothes and refused to go to school.

10. The Covid-19 pandemic had an extremely negative impact on the respondent, particularly as his day service provision from the Western Care Association became more intermittent. Since then, the respondent has largely remained in the family home; whilst he has a very supportive and loving family, it is of significant concern that the respondent’s engagement with the outside world has effectively ceased.

11. Furthermore, due to a breakdown in the relationship between the Western Care Association and the respondent’s family (the circumstances of which it is not necessary to detail here), the respondent has not been in receipt of any supports for over six months; this is also of significant concern.

Functional Capacity Assessment

12. In accordance with Sections3(1) and (2) of the Assisted-Decision Making (Capacity) Act 2015, a person lacks the capacity to make a decision if he or she is unable to: understand the information relevant to the decision; retain that information long enough to make a voluntary choice; use or weigh that information as part of the process of making the decision or communicate the decision.

13. Capacity is not evaluated on a global basis, but rather on a decision specific basis i.e., in this instance the issue is whether the respondent has capacity to make decisions as to his accommodation, welfare and well-being. Broadly, the question is essentially whether the respondent has capacity to make such personal welfare decisions. More specifically, does the respondent have capacity to decide whether and, if so, how his complex care needs should be assessed and met.

14. Dr. Camilla Curtis, consultant psychiatrist, was retained by the guardian ad litem to perform an independent functional capacity assessment to assist the court in matters relating to the respondent’s decision making capacity and associated care needs. Her report expressed the view that the respondent is unable to articulate his will, preference, beliefs or values regarding his social care supports and lacks capacity in this area. Dr. Curtis also concluded that the respondent is unable to demonstrate any understanding of information relating to accommodation options, such as staying at home or moving to another facility and that he also lacked capacity in this area. Dr. Curtis thus concludes that the respondent lacks capacity to make personal welfare decisions and is unlikely to regain capacity to make decisions in this area. I therefore find on the balance of probabilities that the respondent lacks capacity to make the personal welfare decisions in issue here.

Proposed Placement

15. The HSE’s position is that the proposed placement for a period of assessment is crucial. The purpose of the placement is so that the respondent may be comprehensively assessed in order to identify an individualised plan to meet his needs, at least in the medium term, with a view to giving him a better quality of life. The HSE proposes an iterative process whereby the respondent would be afforded an opportunity to settle down at the Placement and the staff could get to know him. He would then be gradually assessed, supported, facilitated and empowered by a multidisciplinary team of specialists, including a psychologist, occupational therapist, speech and language therapist and behaviour support specialist. The day plan of residents of the facility incorporates therapeutic support, and structured leisure and educational activities.

16. The Placement is one of the very few stand-alone units in the State, capable of offering such assessment facilities. It is the only standalone unit which has responded to a request by the HSE Disability Service for placement of the respondent. Only four individuals are accommodated in the Placement at any one time. Indeed, as these placements are in such high demand, the HSE has been paying to reserve a placement for the respondent since the commencement of this court process. I should also say that the HSE Disability Service has tried to locate a placement closer to his family home. None is presently available or anticipated to become available.

17. In the Placement, the respondent would have his own generously sized bedroom, with space for his belongings and private living needs.

18. The proposed assessment period is expected to be from 12-16 weeks.

19. It is difficult to prejudge the outcome of the intended assessment process. However, the hope is that after the period of assessment, the respondent may be suitable for a multioccupational unit. There are many more such units in the county and several are located much closer to the respondent’s family home. Such a unit would afford the respondent the benefits of independence, community engagement and, crucially, integration with his family.

Evidence of the Applicant

Evidence on the respondent’s current presentation

20. On 10th March 2025, Mr. Deane, behaviour support specialist, visited the family home and noted improvements in the respondent’s skin integrity. He noted that “whilst the sensory, pain / discomfort and environment continue to be a challenge for him, he has not regressed to self-harm and aggression to others. Whilst this is a development, [the respondent’s] current living environment is not conducive to developing adaptive behaviour skills and managing the sensory overwhelm of others. Given clear adequate space and access to an ensuite bathroom, it is clear to see how [the respondent] would thrive in such a space alongside his family”. He noted that the respondent has a cyclical pattern of sleep disturbance, and that outdoor engagement continued to be an issue.

21. Ms. Kelleher exhibits a joint letter written by Dr. Hyland and Mr. Deane on foot of a domiciliary visit which was conducted at the family home on 17th April 2025. On that occasion, the respondent’s mother reported a marked change in his behaviour including a new willingness to leave the house, which she attributed to improvements with his skin condition. It is noted however, that neither Mr. Deane nor Dr. Hyland were in a position to independently confirm that the respondent was prepared to engage with the world outside his home.

Evidence on the suitability of the placement

22. The benefits that the respondent would derive from this placement were set out in the affidavit of Ms. Laura Rochford, disability services manager and in the medical report of Dr. Hyland.

Affidavit of Ms. Rochford dated 6th May 2025

23. Ms. Rochford states that the respondent would benefit from the proposed period of assessment to enhance the respondent’s “social, behavioural skills, communication and independence in daily living with improved quality of life”. In her view, it is imperative that such intervention is permitted as the respondent is getting older and further delay in assessing his needs could negatively impact the success of any future treatment.

24. The respondent currently has no access to a day service and rarely leaves the home. It is essential that an individualised plan tailored to the respondent’s specific physical and psychological needs is developed and actioned. Specifically, Ms. Rochford believes that the assessments necessary to devise this plan can only effectively be carried out in a residential placement.

25. Ms. Rochford acknowledges that the respondent’s parents want what is best for their son and that separation will be difficult. However, the proposed placement is currently the only option available. Whilst the respondent has been receiving supports in the home these are not a “substitute for the .., development of a proper individualised plan designed towards [the respondent’s] more independent living”.

26. The Placement has recently been assessed by the Health Information and Quality Authority (HIQA) on 12th December 2024, and is compliant with the requisite standards in every respect Dr. Hyland

27. Dr. Hyland prepared a report on foot of a meeting between herself, representatives of Nua Healthcare/the Placement and Western Care Association, through which the respondent’s proposed placement was discussed. This report expresses her expert view in relation to the necessity of the placement proposed

28. Although the respondent’s circumstances and presentation in the home environment have improved in recent times, Dr. Hyland’s view is that if he is unable to avail of this period of assessment, then it is highly likely that his quality of life will once more decline in due course. A pattern has developed which involves cyclical worsening of the respondent’s behaviour difficulties, which is unfortunately highly likely to repeat.

29. Dr. Hyland’s report explains that “the benefits [of] a focused assessment in a neutral environment… would include a reliable and comprehensive neuro-affirmative analysis of [the respondent’s] needs across all areas of his wellbeing, supported by a professional team, the establishment of individualised goals tailored to his unique needs, and a holistic approach to improving his quality of life, including diet, sensory engagement, sleeping patterns, communication skills, coping/ regulation skills, and everyday independent skills including bathroom use and personal care”.

30. Although the respondent’s mother contends that he could be assessed in his home, Dr. Hyland states that consistent, daily, multidisciplinary assessment in a neutral environment is necessary in the circumstances. Furthermore, assessment in a standalone unit such as the Placement, as opposed to a multi-occupational unit, is necessary due to the respondent’s sensory and related behavioural issues.

31. Dr. Hyland’s clinical opinion is that the benefits that the respondent will derive from the assessment will outweigh any disruption that the move would cause. She acknowledges that this disruption could manifest as separation anxiety or emotional dysregulation. However, the potential negative effects could be mitigated through a comprehensive transition plan (as explained further below), with input from the respondent’s family. In particular, due to the close bond between the respondent and his mother, her “supportive involvement” in facilitating the transition, through working collaboratively with health care professionals is essential to support the respondent’s transition.

Transition Plan

32. It is essential that a sensitive transition plan is developed to minimise any distress for the respondent. This plan should involve input from Western Care Association, Nua Healthcare and the family members. This plan might include, for example, using visual aids to communicate the forthcoming transition to the respondent and planning for what factors could assist the process of moving, such as travelling with familiar staff or a member of his family.

33. Nua Healthcare/the Placement has confirmed that a two-week period would suffice to plan for the development of this transition plan. It is anticipated that a representative from Nua Healthcare could visit the respondent’s family home to meet him before the transition and that potentially the respondent’s family could visit the Placement before the move.

34. Dr. Hyland’s report states that “supportive, predictable and appropriate family contact” would help support the respondent’s transition. Nua Healthcare acknowledges the benefits of flexibility in terms of family contact and will facilitate all such contact as is in the respondent’s best interests. Text updates and videoconferencing for the initial stages of the placement would be beneficial.

Evidence of the respondent’s mother

Opposition in principle

35. The respondent’s mother filed two affidavits and gave oral evidence signalling her opposition to the proposed transfer.

36. I should first say that it is evident that the respondent’s mother, and indeed his whole family are devoted to him. He is at the heart of the house and is loved, minded and cared for.

37. The respondent’s mother stated that her son has made “great improvements” and is developing key life skills at home. She notes that he has begun taking a shower every day and has also been willing to brush his teeth. Further, he was recently able to join his parents on a short drive around the estate.

38. She stated that the respondent is her life and that he would not cope well with the proposed separation. She fears that the respondent will think she is dead if he moves to the Placement.

39. In his mother’s view, it is critical that the respondent is afforded time to make progress at home rather than interrupting that process by moving him far away. She states that she “knows him best” and wants to be given a chance to care for her son.

40. Having said that, the respondent’s mother acknowledges that while he is doing well at home, it is clear that he will need a bigger home with more space. Mayo County Council has looked at seventeen different homes for the family since 17th April 2023.

41. Crucially, the respondent’s mother also acknowledged that the respondent would benefit from extra care and supports in order to reach his full potential. To this end, she hopes that with support, the respondent may eventually attend a day centre closer to home.

Distance

42. One of the family’s primary concerns is the distance between the proposed placement and the family home, which is approximately three hours by car. The respondent’s mother does not drive and has indicated that if the respondent were to be based in the Placement, she would be forced to leave her other children and move nearby to be with him. The respondent’s mother stated that this would “destroy [their] family”.

43. She also indicated that it would not be appropriate to communicate with the respondent via video conferencing as this form of communication would be rejected by him because he does not like holding mobile devices and is unlikely to engage.

44. The court queried whether there was the potential for transport to be organised for the respondent’s mother to facilitate her to visit the Placement. Following inquiries made by Ms. Kelleher, solicitor for the HSE, it was suggested that the respondent’s mother could apply to the Department of Social Protection for an exceptional needs payment to help pay for the cost of the transport. The HSE would support this application and would assist in any way it could.

Submissions of Ms. Dillon

45. Ms. Dillon, the respondent’s guardian ad litem, filed three affidavits and gave oral evidence in this matter.

46. In oral evidence, Ms. Dillon acknowledges the co-operation of the family. She notes that the respondent had been a high functioning young man who attended mainstream national school, but who now leads an incredibly isolated and sequestered life, save for the loving care of his family.

47. Ms. Dillon acknowledges the significant progress made in relation to the respondent’s psoriasis, which was one of the main barriers to his engagement with the community. This progress has been through the provision of Sterala injections.

48. However, notwithstanding this recent progress, Ms. Dillon believes that a period of assessment is nonetheless necessary to assess the respondent’s needs for care and support, in order that he may lead as full and independent a life as possible.

49. Ms. Dillon appreciates the challenges that the period of assessment will present to the respondent’s mother and to the broader family; but she also notes that the family recognises that this period of assessment could be beneficial. Ms Dillon notes the family’s concerns about the duration of the proposed assessment and the distance to the Placement. However, she does not believe that a comprehensive assessment, which the respondent urgently needs, can be performed in the home setting.

50. Ms. Dillon was encouraged by the fact that it now appears that the Western Care Association are now open to potential future involvement in the respondent’s care. This is a very significant development because, at the outset of this court process, such involvement appeared to have been firmly ruled out. The fact that a local service provider is now open to future engagement reflects the collaborative approach which has developed over the course of these proceedings, all of which will, it is hoped, inure to the respondent’s benefit.

Jurisdiction of the High Court

51. In DG v. Eastern Health Board [1997] IR 512, Hamilton C.J. described the jurisdiction of the High Court as such jurisdiction as (1) conferred by the constitution (2) may be imposed by statute and (3) is necessary to fulfil the obligations imposed on it to defend and vindicate the personal rights of the citizen.

52. It is established that where an adult lacks capacity and where there is a legislative lacuna so that the adult’s right to bodily integrity, welfare and well-being cannot be served without intervention by the Court, the Court has jurisdiction to intervene. This jurisdiction is only to be used in rare and exceptional cases.

53. If a court is satisfied that the respondent lacks capacity to make the personal welfare decisions described, it will then be necessary to consider the circumstances in which detention might be necessary to defend and vindicate his constitutional rights.

54. As noted by Hyland J. in KK (No. 2) [2023] IEHC 565 at para.30, that requires an identification and analysis of (a) the type of restrictions on the liberty of the person proposed;

(b) the constitutional rights negatively impacted by the proposed detention under threat; (c) the constitutional rights sought to be protected by the proposed detention; (d) the carrying out of a balancing exercise to identify what rights ought to prevail and (e) a consideration of the proportionality of the measure proposed.

55. In HSE v. VF [2014] 3 IR 305, the court stated that as the declaration sought involved a serious intrusion on the defendant’s right to liberty, the HSE must demonstrate on the balance of probabilities that the exceptional measures were justified to maintain and preserve the defendant’s health. The necessity for proportionality was also emphasised.

56. Although it is for the courts rather than for the parent to decide the matter, the mother’s view and the view of the family “must carry considerable weight”. The court’s primary consideration must be the best interests of the ward, and the family’s view cannot prevail over the court’s view of the ward’s best interest (as per Re a Ward of Court (withholding medical treatment) [1996] 2 IR 79).

Determination

57. In this case, each of the professionals who have reviewed the respondent agree that it is necessary for him to be facilitated in a standalone unit with a structured programme of assessment. The Placement will facilitate this structured, individualised, multi-disciplinary assessment and each of the professionals who have reviewed the respondent agree that there is no less restrictive way to ensure the respondent’s life, safety, and health.

58. The report of Dr. Hyland is highly influential in explaining the purpose and considerable potential benefits that the respondent could accrue on foot of the proposed process of assessment at the Placement. This process, if successful, will present the respondent with an opportunity for greater independence and broader engagement with his environment. This has the potential to enhance his life in the short term and for many years into the future.

59. In this case, the constitutional rights impaired by an application to detain are most obviously the constitutionally protected right to liberty, as well as the right to autonomy and self-determination. On the other side of the scales is the right to bodily integrity.

60. I am convinced that a complete multi-disciplinary assessment is urgently required in the respondent’s best interests. It is essential that the respondent is permitted to avail of the opportunity presented to have his needs comprehensively assessed when he is still at a comparatively young age so that a clear pathway can be identified to accommodate his clinical and care needs into the future.

61. I am also satisfied that this has not to date been possible in a domiciliary setting and will not be possible in the future. As such the legal protection of the respondent and the vindication of his rights requires the court, on the facts of this case, to invoke its inherent jurisdiction to provide him with protection.

62. The object of the placement ordered by the court is to protect the respondent’s right to bodily integrity, welfare and well-being, in accordance with the obligation imposed on the State under Article 40.3.2 of the Constitution.

63. As the respondent cannot, on the evidence, make decisions about matters of personal welfare himself, and as there is a legislative lacuna, the inherent jurisdiction of the court is engaged. Carefully considering all the evidence and balancing competing constitutional rightsincluding rights to liberty, to life, to bodily integrity and autonomy, as well as equal access to care, I am satisfied that it is appropriate to grant the orders sought. I consider the deprivation of liberty in the present circumstances to be rationally connected to the pressing and substantial need to ensure the respondent’s health and well-being. I consider that the placement proposed is the least restrictive way of vindicating the constitutional rights requiring protection in this case.

64. In the present case there are five safeguards on the exercise of the court’s inherent jurisdiction.

65. First, there is independent medical evidence in relation to the capacity of the respondent and detailed social work and medical evidence as to the necessity of the restrictions proposed.

66. Secondly, the voice of the respondent has been heard and that has been facilitated, through the guardian ad litem. In HSE v. ND, O’Donnell J. stated that the task of the guardian ad litem is twofold: to ascertain as best they can the wishes and preferences of the respondent and convey those wishes to the court; and second, to provide an independent view to the court on the application that is under consideration. I am fully satisfied that the respondent has been represented by a person competent to assist them in responding to the application. The assistance of Ms, Dillon as guardian ad litem has been invaluable in this regard. Likewise, the views expressed by the respondent’s mother and by her counsel have been of huge value in this case.

67. Third this court deferred the exercise of its inherent jurisdiction for a short initial period, namely two weeks. This is to facilitate a period of engagement between the respondent’s family and all involved health care professionals in relation to the development and agreement of a transition plan to include arrangements for nearand medium-term family communication and in due course, visits. It is to be hoped that this further period of engagement will result in a greater level of comfort on the part of the respondent’s family with this process. Family support for this transition is vital in the respondent’s interests.

68. Fourth, there will be regular periodic reviews of the orders that this court will ultimately make, at which adequate evidence should be adduced justifying the continuing need for and the proportionality of the orders that are sought to be continued.

69. Fifth, for the benefit of the respondent’s mother, I would like to emphasise that there has been no decision by the court as to the respondent’s future after this period of assessment. She can be assured that no such decision will be made without a further opportunity for all parties to be fully heard.

70. I do not under-estimate, how difficult the process authorised by this court’s order will be, initially at least, for the respondent himself. On a personal level, I also deeply regret how painful this process will be for the respondent’s mother, and perhaps also for other members of his family. However, I am absolutely convinced that to proceed otherwise would be to deprive the respondent, who is a highly vulnerable individual, of the opportunity to substantially improve his present and future health, wellbeing, independence and quality of life.