HSE aims to ensure legal protection for people detained in psychiatric units

The HSE has secured court orders aimed at providing legal protection for a group of vulnerable mentally ill people who have been effectively detained for many years in psychiatric units.

Applications have been made in relation to eight people placed in units that are either locked, or are in locations from where they cannot freely come and go. More applications are expected.

Applications to detain four people who lack capacity to consent to voluntary detention under the Mental Health Act (MHA), but do not meet the requirements for involuntary detention under the MHA, were made in recent days to the president of the High Court, Mr Justice David Barniville, who manages the court’s wardship list.

The four include a man and woman, who both have schizophrenia and have respectively been 40 and 30 years in asylums or psychiatric care units.

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Katharine Kelleher, a solicitor representing the HSE in many cases, said the four were among a number of vulnerable people who cannot be involuntarily detained under the Act but cannot consent to voluntary detention.

Ms Kelleher said she made similar applications in March relating to four other people effectively detained in similar circumstances.

The judge appointed guardians ad litem to represent the interests of all those subject of the applications.

In the case of the man who has spent more than 40 years in institutions, having entered in his 30s, Ms Kelleher said he was not actively looking to leave but had a personal chaperone at all times because, when unsupervised, he could behave in an unpredictable manner and kick out and assault other residents and staff.

The man’s guardian told the judge he visited him in recent weeks and described him as a “gentle man” with limited speech who was holding children’s toys while they spoke.

The man could not say exactly where he was from but named another area some 30 minutes from his birthplace, the guardian said. It was difficult to have a conversation as the man was “constantly distracted” but when asked was he happy in the unit, the man replied he was.

Supporting the HSE’s application, the guardian said he considered the man was a vulnerable person lacking capacity who clearly needed the care he was getting.

Granting the application, Mr Justice Barniville said there was significant medical evidence to support it. He had no doubt the man was a person of unsound mind and would not meet criteria for detention as an involuntary patient under the Act.

The man was in a locked facility and is vulnerable, the judge said. This was “a sad case”, he had been in this particular unit for some 13 years, it “did not seem from the evidence there is anywhere else he could be” and he was being well cared for.

Making the orders, the judge said, because they involved aspects of detention and restriction, they required review.

Before the new Assisted Decision Making Capacity Act, which became operational this week, there would have been a review in six months but, because the new Act provides for three months, the case would be reviewed in July, the judge said.

Ms Kelleher sought similar orders concerning a woman in her 70s with chronic schizophrenia who went into an institutional setting in her late 30s. When that institution closed, she went to another unit.

A psychiatric report made clear the woman was a long-term service user who had been in the unit, where she could not freely come and go, on a voluntary basis for years and was not seeking to leave but was highly resistant to physical examination, Ms Kelleher said. Her psychiatrist was of the view she required court protection, was unable to deal with her finances or to say where she might live.

Her guardian told the court the woman had “a very happy demeanour” and had told him she was very happy with the care from staff. Her conversation was “very limited”, she clearly required the care she was receiving and was clearly vulnerable, he said.

Mr Justice Barniville said the medical evidence was the woman had chronic schizophrenia with a background of mild intellectual disability and clearly lacked capacity. She was not eligible for detention anywhere else and he would make the orders sought, also to be reviewed in July.