Brexit may force HSE to provide more services here, court told

Brexit may require the HSE to provide essential services here for the growing numbers of vulnerable children and adults it is sending to the UK for treatment, the President of the High Court has said.

Judge Peter Kelly said the numbers being referred, particularly of severe eating-disorder cases, are such that he thought it would be "a lot cheaper" to provide the necessary facilities here rather than send people to the UK.

He said he didn’t anticipate “any lessening” of the numbers of people coming before the court whose medical and psychiatric needs cannot be met here.

He also said that because the HSE was not providing the necessary services here, he expected it to fund visits by parents whose children are sent to the UK for treatment, as all the psychiatric evidence shows that parental engagement is generally a “crucial” part of the treatment.

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That funding should be provided upfront rather than have parents, some of whom may be struggling, trying to find the necessary money and later recover it from the HSE, as is often the case now, he outlined.

The judge made the comments on Friday when dealing with cases in the wards of court list, which deals with vulnerable children and adults deemed to lack decision-making capacity.

Patricia Hickey, general solicitor for wards of court, said the situation concerning treatment transfers was "not feasible" and it was also unfair to "wrench" people from their families here and send them to England.

Ciaran Craven SC, for the family of a brain-injured woman in her 40s who had opposed her being sent to the UK for treatment, agreed with Ms Hickey.

The judge made orders aimed at progressing the transfer of that woman and also made orders for the transfer of a teenage girl, who has chronic anorexia, to a specialised UK unit for treatment. Those orders were made with her parents’ consent and the judge said he expected the HSE to fund the parents’ visits to their daughter.

When such transfer orders are made by the High Court, there has to be a parallel application in the UK courts for them to be enforced.

The judge said the HSE should consider, with Brexit approaching and the possibility that EU legislation “may fall out of consideration”, that the question arose: “What then?”

Future enforcement

He said Brexit raised issues concerning the future enforcement in the UK of medical-treatment orders made by the Irish courts and broader issues concerning access of Irish children and adults to treatment in the UK.

Ms Hickey said there was a legal difference concerning the treatment of adults and children and adults and children may be in a different position after Brexit.

Because the treatment of children is governed by an EU regulation, and the treatment of adults is governed by UK law, the treatment of children is considered potentially more at risk from Brexit.

The judge said, given the increasing number of applications by the HSE for UK treatment orders because the necessary facilities are not here, the HSE should maybe consider how to provide such facilities here.

Peter Finlay SC, for the HSE, said it had been considered in the past that the numbers requiring certain treatments did not justify providing the relevant facilities here, but it may be that a “critical mass” had been reached.