Where child facilities inadequate, court will not order treatment contrary to clinical judgment

D.H. (a minor) (applicant) v Ireland, the Attorney General and the North Eastern Health Board (respondents) and the East Coast…

D.H. (a minor) (applicant) v Ireland, the Attorney General and the North Eastern Health Board (respondents) and the East Coast Area Health Board (notice party).

Constitution - Family law - Child care - Statutory responsibility of health board - Constitutional rights of the child - Proper role of the court in making an order for medical treatment - Whether the court should refrain from making an order - Whether court could relieve health board of statutory responsibility - Nature of order which the court could make - Constitution of Ireland, Article 40.3.1 - Child Care Act 1991, section 3.

The High Court (before Mr Justice Kelly); judgment delivered 23 May 2000.

WHERE a health board does not have suitable facilities to fulfil its statutory responsibility to provide for the welfare of a child who is not receiving adequate care and protection, the court will not order a doctor to treat the child in a manner contrary to his or her clinical judgment.

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The High Court so held in making permissive orders, firstly, permitting the health board, to detain the applicant at any facility which could be found, provided that it met with the approval of a consultant child psychiatrist of the health board, and secondly, giving leave to administer such medication to the applicant as the psychiatrists having clinical responsibility for the applicant deemed appropriate; and in making mandatory orders firstly, compelling the health board to provide suitable facilities within three months and secondly, directing the Minister for Health and Children to provide all necessary funding, facilities and supports.

Mark de Blacam SC and James McGowan BL the applicant; Paul O'Higgins SC and John O'Donnell BL for the first and second respondents; Mary O'Toole SC and Teresa Blake BL for the third respondent; Felix McEnroy SC and Barry O'Donnell BL for the notice party.

MR JUSTICE KELLY set out the facts of this case stating that the applicant had been placed in foster care from an early age followed by residence in a variety of residential care facilities. Mr Justice Kelly stated that the applicant was a profoundly disturbed person. All of the parties before the court were agreed that it would be irresponsible and wrong to release the applicant from a secure setting and that it would not be practicable to contemplate the applicant's return to a detention centre.

Mr Justice Kelly stated that the case of the applicant was the most difficult of all the children's cases that it had been his responsibility to decide. It represented, in a most tragic human form, the results of a failure to provide adequate services to address the needs of children such as the applicant. Mr Justice Kelly stated that he had no hesitation in accepting psychiatric evidence that if treatment, which had been recommended over four years ago, had been provided, the applicant might have made progress and probably would not be before the court today. The court had already pointed out, in previous cases, the ludicrous situation that had existed since section 3 of the Child Care Act 1991 foisted a statutory duty on health boards to, inter alia, promote the welfare of children in their areas. However health boards had not been given the necessary statutory powers, funds or facilities, to carry out their duties under the Act. They still had to come to this court, not pursuant to any statutory provision, but pursuant to the constitution, for orders directing the detention of young people to whom they owed the duty created under section 3.

Mr Justice Kelly stated that this case, in common with all the other children's cases, was a human tragedy actually unfolding on a daily basis. Something could still be done to help these children, but there was little evidence of any great enthusiasm to do so. The only substantial progress made had required this court to intervene and grant injunctions to ensure that it took place. When these injunctions were sought on the part of minors they were fully resisted by the Minister for Health and Children on every conceivable ground.

The court set out the constitutional rights of the child. Article 40.3.1 of the Constitution provides that: "The State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen". In G v An Bord Uachtala [1980] IR 32, the then Chief Justice, Mr Justice O'Higgins, stated, at page 55, that the child also had natural rights which must be equally protected and vindicated by the State. In D.G. v Eastern Health Board [1998] ILRM 241, the Chief Justice Mr Justice Hamilton, affirming the decision of Mr Justice Kelly in the High Court, cited Chief Justice O Dalaigh, who in The State (Quinn) v Ryan [1965] IR 70, held at page 122 that no one could with impunity set these rights at naught or circumvent them and the court's powers in this regard were as ample as the defence of the constitution required.

Mr Justice Kelly then went on to consider the applications before the court. The first was an application that the applicant be detained in the Central Mental Hospital. The order sought was strongly resisted by the hospital, on the basis that it would be medically, ethically and morally wrong for the applicant to be sent there. Mr Justice Kelly cited the views of Lord Justice Balcombe, in Re J. (a minor) [1992] FLR 165, at 175, who stated that if a court ordered a doctor to treat a child in a manner contrary to his or her clinical judgment, it would place a conscientious doctor in an impossible position. Any failure to treat the child as ordered would amount to contempt of court and any judge would be most reluctant to punish the doctor for such contempt, which was a very strong indication that such an order should not be made. Lord Justice Balcombe also stressed the absolute undesirability of a court making an order which might have the effect of compelling a doctor or health authority to make available scarce resources to a particular child, without knowing whether or not there were other patients to whom these resources might more advantageously be devoted. Mr Justice Kelly stated that applying that reasoning, and having regard to the findings which he had made in light of the evidence placed before him, he was refusing to make an order detaining the applicant in the Central Mental Hospital.

The second application sought an order that the applicant be detained in St Brigid's Hospital in Ardee. This was the order sought by the Minister for Health and Children. Mr Justice Kelly stated that he would not do it, he would not dignify the minister's request with the authority of a mandatory order of the court. The conditions were completely substandard to the applicant's needs. They imposed a regime more harsh than that applicable to the most hardened criminals convicted of the most serious offences. What the court was dealing with was a vulnerable, damaged and abused human being. Mr Justice Kelly stated that he wanted to make it clear that he was making no criticism whatsoever of the medical or nursing staff of the hospital. They had behaved superbly. He would not make an order which compelled, as this order would in effect do, doctors and nurses to be jailers. That was not their vocation or role and he would not make it so. Neither would he make an order which would have, as a necessary consequence, the diminishing of the services to the other patients. Mr Justice Kelly stated that quite frankly a Minister for Health and Children who asked the court to make this order should not merely be embarrassed but ashamed to do so.

The third proposition that was put to the court was that no order should be made. This was an option discussed by Mr Justice Murphy in the Supreme Court in D.G. v The Eastern Health Board [1998] ILRM 241. Mr Justice Kelly was satisfied that this would not be appropriate as it would mean that the last institution of the State, namely this court, would turn its back on this child, just as the other institutions had done. It would make hollow, the rights identified by the Supreme Court, and this court, as enuring to the child, and would reduce to shibboleth the promise to see to the enforcement of those rights.

The fourth order which was sought was an injunction against the Minister for Health and Children compelling appropriate facilities to be provided within 48 hours. At one stage it appeared that no evidence at all was being called by the State. There was a change of mind in this regard while closing submissions were being made. Mr Justice Kelly stated that if such evidence had not being led this was the order he would have been prepared to make. However, having heard the evidence, he was of the view that nothing would be achieved by an order in those terms. There was simply no facility in the State to meet the needs of this child. There was therefore no fashion in which such an order would be complied with because it could not be complied with. The prospects of an appropriate facility being found outside the State were poor. Mr Justice Kelly stated that he would prefer to make an order, the enforcement of which would be under the supervision of the court and an order which would have about it both teeth and reality.

At law the statutory responsibility for this child was with the North Eastern Health Board. The court had great sympathy with that board in attempting to meet its obligations and had already pointed out the paucity of its powers and resources. When in other cases the issue had been raised concerning the lack of powers and facilities of health boards the court had been told by various counsel that there was a Bill before Parliament to deal with it. So it had been for years. It was of no use to the health board, or to this court, or to this child, or others like the child, that that should be so.

Notwithstanding all these shortcomings, the statutory function of the North Eastern Health Board remained. They had to comply with it and could not be relieved of so doing by the court. They did not have power to detain this child. They did not even have a statutory entitlement to apply to a court for such an order. They had to rely on the constitution in this regard.

In the case of the applicant the court proposed to make not a mandatory order but a permissive one. The order would be, that having recited the statutory responsibility, which was owed to the applicant by the health board, the court would permit the health board, in giving effect to its duties, to detain the applicant at any facility which could be found, provided that it met with the approval of the consultant child psychiatrist of the North Eastern Health Board who had given evidence in the case. The court had to accept that in the present circumstances the likelihood was that the only facility would be St Brigid's Hospital in Ardee. There would also have to be a permissive order giving leave to administer such medication to the applicant as the psychiatrists having clinical responsibility for the applicant deemed appropriate. Mr Justice Kelly stated that he wanted to make it crystal clear that this order did not compel the detention of the applicant at St Brigid's Hospital, Ardee, and most particularly it did not compel any doctor to act contrary to their conscience or code of ethics. The order was permissive in nature only.

Mr Justice Kelly stated that he was also going to make a mandatory order, compelling the North Eastern Health Board to carry out necessary refurbishment to the premises identified in evidence, which was situate in the grounds of St Brigid's Hospital, which work was to be done in the self selected period of three months which was referred to in evidence. Mr Justice Kelly stated that he was also going to make a mandatory order directing the Minister for Health and Children to provide all necessary funding facilities and supports so as to ensure that that premises would be refurbished and brought into operation as a place for the detention of the applicant and other similar children by 23 August of this year. That again was the self selected period of three months which was given to the court in evidence.

Mr Justice Kelly stated that he regretted that he was not in a position to address the real needs of the applicant in a more immediate way, but the court was in no better place to try to provide short term solutions than was the health board in the position in which it found itself.

Solicitors: Patrick M. Goodwin & Co (Drogheda) for the applicant; Chief State Solicitor for the first and second respondents; McGovern Solicitors (Navan) for the and third respondent; Roger Greene & Sons (Dublin) for the notice party.