High Court of Ireland Decisions

[2025] IEHC 217

THE HIGH COURT

IN THE MATTER OF "A"

AND

 IN THE MATTER OF THE INHERENT JURISDICTION OF THE COURT

 AND

IN THE MATTER OF AN APPLICATION FOR TRANSFER OUT OF THE JURISDICTION

AND

IN THE MATTER OF AN OBJECTION BY FAMILY

 

 

BETWEEN

H.S.E.

APPLICANT

-AND-

 

[A]

   RESPONDENT

  

 

Ex Tempore Ruling of Mr Justice Heslin delivered on the 3^rd day of April 2025

1.            I am grateful for the very detailed and helpful submissions made by Mr. Brady B.L. for the H.S.E, the applicants in today's motion, and Mr. Leahy S.C. for the guardian ad litem Ms. Curry, who supports the relief sought.  I am also grateful for the participation 'on-line' by Ms. [B], the respondent's sister. I will begin with the background.

 

Background

2.            In light of the evidence, the respondent is and remains an Irish citizen in his fifties. He was born in Ireland, he is habitually resident in this State. He is someone who, on any analysis, has a complex set of needs and a complex presentation, which involves risk to self and to others. The evidence before me refers to a range of diagnoses, including autism spectrum disorder, mild intellectual disability, schizoaffective disorder as well as generalised anxiety disorder. He was admitted to wardship in June 2017 and is currently resident and detained in a Nua Healthcare placement called [current facility] for the purpose of being provided with care and therapeutic services. [Current facility] is an approved centre under the Mental Health Act 2001 and, in the context of the respondent's discharge from wardship under the 2015 Assisted Decision Making Capacity Act ("the 2015 Act") the H.S.E. brought an application under this Court's inherent jurisdiction for a suite of orders 'mirroring' those previously made under wardship. Those orders were made on 12 February 2025, at which stage the possibility of a move to the United Kingdom for treatment was a 'live' one.

 

Transfer application

3.            Today, the H.S.E. bring an application seeking authority to transfer the respondent to a specialist placement in the U.K. called [proposed facility]. It seems appropriate to note that the respondent previously received care in [proposed facility] from October 2016 to April 2018 following which he moved to a stepdown placement in England, after which he transferred to [current facility] in October 2018. He resided in [current facility] until April 2020, following which he moved to a less restrictive stepdown placement also operated by Nua called [previous facility]. Unfortunately the [previous facility] placement broke down due a significant deterioration in the respondent's behaviour and in January 2022 he was re-admitted to [current facility]. 

 

Family opposition

4.            As has been touched in the submissions, I previously directed that the papers concerning this application be made available to the respondent's family. That was done in circumstances where certain family members expressed an objection to any transfer of the respondent to the U.K. for treatment. Mr. [C] (A's brother) and Ms. [B] (A's sister) participated on-line when the matter was before me on the 12^th March last, and I made clear that the family had every reasonable opportunity to file such evidence on affidavit as they wished me to consider. For whatever reason, the family have chosen not to take the opportunity to proffer any evidence although, in the manner I will come to when addressing Ms. [B]'s submissions, the family would appear to remain opposed to the proposed transfer. 

 

Evidence

5.            Bearing in mind that this Court's decision making must be based on the evidence before it and the facts which are disclosed in that evidence, I now turn to it, beginning with the 'grounding' affidavit - in other words, the affidavit on which the application is based and it was sworn by Mr. [E] of H.S.E. disability services on the 3^rd March.

 

6.            Mr. [E] avers inter alia that extremely challenging behaviours can be a feature of the respondent's presentation and that a large number of previous placements for the respondent have broken down as a result. A detailed history of the respondent's care and treatment is set out in the report by Dr. [F], consultant forensic psychiatrist, which Mr. [E] exhibits. Dr. [F] notes inter alia that there were over 150 incidents of concern, including, physical aggression, property damage and self-harm from the point of admission. Dr. [F] confirms that the respondent requires two to one therapeutic observation and has on numerous occasions required physical restraint to manage his global risk and to prevent immediate and serious harm to him, or to others. 

 

7.            It is also confirmed that, despite initial engagement, the respondent has since disengaged from therapeutic interventions and structured activities in [current facility] and routinely engages in an abnormally aggressive manner. Dr. [F]'s report makes clear that [current facility] lacks the specialist expertise and environment needed to effectively treat the respondent and manage his complex needs and risks. Dr. [F] further opines that the respondent suffers from mild intellectual disability which invariably impacts on cognitive function, as well as suffering from schizoaffective disorder which also impact negatively on cognition; and the doctor also makes clear that the respondent does not have an understanding of his mental health difficulties.

 

The "only hope"

8.            The current placement is described by Dr. [F] as "not tenable" and the following are verbatim quotes from doctor [F]'s report. 

 

"Mr. [A] in my opinion requires management by a specialist intellectual disability forensic underpinned by specialist interventions and resources in a building that can provide the requisite physical security. I am of the view Mr. [A] requires relational procedural and physical security and specialist interventions that [current facility] is unable to provide. The provision of specialist treatment in a specialist environment is the only hope of improving Mr. [A]'s overall presentation reducing the risk he poses to self and others and at the same time improving the quality of his life."   (emphasis added)

 

No suitable placement in Ireland

9.            Later Dr. [F] goes on to say:

 

"Having reviewed his clinical pathway to date, I am of the opinion that Mr. [A]'s repatriation from conditions of low security at [previous facility] in England to a non-specialist placement in Ireland was somewhat premature. At the time of repatriation, he had been managed in a specialist low secure unit for just over six months. In my opinion Mr. [A] required a much longer period of active treatment and rehabilitation in a specialist low secure environment to ensure a proper understanding of his complex psychopathology. I am of the view that he required targeted interventions to address aspects of his presentation such as complex trauma, sexuality, identity, consequential thinking and problem solving, mediators of his violence and aggression, effective pharmacological treatment of his schizoaffective disorder, supportive management of his autistic spectrum disorder. I am not aware of any specialist intellectual disability low secure unit in Ireland although Nua is in the process of opening a low secure unit i.d. is an exclusion criterion for the upcoming unit and therefore not a viable option for Mr. [A]."  (emphasis added)

 

10.         Mr. [E] avers, at para. 8 of his affidavit, that H.S.E. disability services agree with Dr. [F] that they are no placements available in this country suitable for the respondents needs.

 

High risk to self and others

11.         Mr. [E] also exhibits a report of the 7^th October last prepared by Dr. [G] consultant psychiatrist who met with the respondent on the 16^th September. Dr. [G] addresses inter alia the risks arising from the respondent's presentation and opines on his lack of capacity to understands the benefits of treatment. Dr. [G] is satisfied the respondent has a mental disorder within the meaning of s. 3(1)(a) and (b) of the 2001 Mental Health Act, and the following comprise certain verbatim extracts from Dr. [G]'s reporting:

 

"Mr. [A]'s most prominent symptoms are his impulsivity and violence coupled with his lack of empathy. These are of long standing and can been seen as a consequence of his neurodevelopmental disorder which has manifested as autistic spectrum disorder, intellectual disability ADHD and schizoaffective disorder. Although he does not currently present with symptoms of psychosis or persistent mood disorder for which he is receiving medication he continues to present with symptoms of ADHD and autism which combined with his cognitive limitations of lack of empathy render him a high risk to himself and

others."             

 

Insight  

12.         Later, Dr. [G] states that the respondent:

 

"...showed limited insight into his situation. His complex mental disorders impair his judgment and understanding of the consequences and dangerousness of his behaviour. He frequently refuses to take medication and would be extremely unlikely to take it outside of an approved centre. He lacks the capacity to understand the potential benefits of engaging with any form of treatment, including non-pharmacological interventions". 

 

13.         Dr. [G] goes on to make clear that until a more suitable placement can be found further deterioration would be caused to the respondent by a failure to admit him to [current facility]. I pause to say that on the evidence before me [proposed facility] undoubtedly comprises a more suitable placement. 

 

Hindsight

14.         I also have the benefit of reporting from Dr. [H] consultant psychiatrist, who is joint clinical lead of the learning and disability autism division of [proposed facility] and this followed an 'in person' assessment of the respondent, which took place on the 20^th September last. Dr. [H] details the circumstances which gave rise to the previous transfer of the respondent to [previous UK facility] in August 2016, as well as the progress which led to stepdown in April 2018 to the low secure service at [previous UK stepdown facility] and it will be recalled that Dr. [H] believes that the respondent, with the benefit of the hindsight, required a longer period of care in [previous UK stepdown facility] before his return to Ireland.

 

The Respondent's views - September 2024

15.         Dr. [H] notes inter alia that the respondent at that stage [in September, 2024] did not wish to return to [proposed facility] saying to Dr [H] that there were "lots of things he did not like" about it, although not elaborating on that expressed view.  Nor did the respondent reply when advised by Dr. [H] that a different location at [proposed facility] was now being proposed.

 

Care needs

16.         Dr. [H] opines that, having regard to the respondent's long standing and significant risk of harm to self and others it appears likely that his risk of such future behaviours will remain long-term; and in relation to current care needs Dr. [H] states inter alia the following:

 

"At present the most viable short to medium term management appears to be the autism specialist medium secure ward. Medium security appears most appropriate in order to manage his ongoing risk of harm to self and others. The environment of the low secure ASD ward would present high risks to him and others such as with ingestion of non-edible items. Further on admission to the MSU he would require two to one male only continuous observations to manage his risks similar to his current enhanced support plan.

 

As per the risk assessment [detailed in Dr. [H]'s report] I am of the view that he is likely to continue to require 24 hour care support to manage his risks long-term, even following optimisation of his medication, psychological and occupational therapy input. It appears very likely that the most appropriate future placement for him would be an individual accommodation with specialised 24 hour staffing, with a minimum of 2:1, as per our on-site Supported Transition Services, with a view to moving to a similarly setup community accommodation..."

 

17.         Dr. [H] also emphasises the need for a commitment to supporting an onward move when the respondent's management is thought to be optimised as far as possible on the medium secure unit; and this is to avoid admission to a medium secure unit being unnecessarily prolonged. 

 

18.         Regarding the placement itself, I note the contents of an 11^th January 2024 report prepared by the U.K. care quality commission as well as the averments made at paras. 34 - 37 of Mr. [E]'s 3^rd March affidavit. From paras. 38 - 41 Mr. [E] makes averments which can be summarised as follows:-

 

·         the respondent continues to lack capacity;

·         he requires specialist care and treatment;

·         [current facility] regard the respondent as beyond their capacity to treat or manage;

·         his mental disorder is not being affectively treated in his current placement;

·         there are no other placements available within this State which are appropriate to meet his current needs;

·         the only viable option at present is a specialist secure placement outside of the jurisdiction;

·         the respondent was previously placed in the care of [proposed facility] and benefited from same; and

·         [proposed facility] have agreed to accept him subject to a placement becoming available.

 

Functional assessment of capacity

19.         In addition, I have the benefit of an affidavit sworn on the 3^rd March of this year by Dr. [I] consultant psychiatrist and clinical director of [current facility].  The respondent has been under Dr. [I]'s care since June of last year. Dr. [I] conducted a 'functional' assessment of capacity on the 15^th January of this year and exhibits a detailed report of the same date.  Dr. [I]'s opinion includes the following:

 

·         the respondent lacks capacity to make decisions about his treatment;

·         he does not have the capacity to instruct a solicitor in respect of court proceedings relating to orders detaining him for the purpose of receiving treatment;

·         he continues to present as a high risk of harm to self and other requiring extensive behavioural management which [current facility] is not in a position to provide;

·         the respondent lacks insight into his challenging behaviours and the degree of risk which this poses to others;

·         he continues to meet the criteria in s. 3(1)(a) and (b) for 'mental disorder' under the 2001 Mental Health Act;

·         a placement in [proposed facility] in the United Kingdom would allow for more intensive rehabilitative work to be done with regard to improving the respondent's general overall functioning;

·         Mr. [A] lacks insight into the deterioration in his general levels of activity over the past two years, spending most of his days sitting in a chair and watching television;

·         his understanding of the reason for transfer, namely, management of risk to self and others, and support around engaging in enjoyable and meaningful activities, and, therefore, his ability to understand any treatment options which are put before him is significantly impaired;

·         he does not have the ability to weigh up information and lacks the capacity to make decisions about his treatment in [proposed facility];

·         if he is not transferred to [proposed facility] he will remain in a unit which is not appropriate for his complex needs and he will not have access to the more appropriate interventions which [proposed facility] can provide.

 

20.         Dr. [I] supports today's application for the continued care and treatment of the respondent at [current facility] until a placement is available in [proposed facility] and he supports the H.S.E's application for orders authorising the respondent's transfer to and permitting his detention and treatment in [proposed facility].

Application papers provided to family

21.         As I touched on earlier, given that certain family members previously expressed opposition to a transfer to [proposed facility], I gave directions that the papers concerning this application be provided to family and that was certainly done. That is perfectly clear from the terms of the affidavit of service sworn by Ms. Aisling McKay, of Comyn Kelleher Tobin, solicitors for the HSE, on the 10^th March. I also gave a period, initially of ten days, for the filing of replying affidavits by the family should they wish, but that period was very much extended. The matter was adjourned on the 12^th March specifically so that family would have every reasonable opportunity to proffer any evidence in opposition to today's application, should they so wish. 

 

No affidavit from family

22.         When adjourning the matter on the 12^th March, I made very clear to members of the respondents family the difference between, on the one hand, a submission in which a view is expressed and, on the other hand, evidence proffered to support an expressed view. As I have said, no affidavit has been furnished by the respondent's family.  Therefore, there is no evidence furnished in support of an objection to the proposed transfer. However, Ms. [B] the respondent's sister very patiently listened to the submissions made by both Counsel and then made submissions which I take it to be on behalf of [A's] family, which can be summarised as follows. 

 

Submissions on behalf of family

23.         It was submitted that family are not happy with [current facility]. They are keen to find a placement suitable to meet their brother's needs, in Ireland. It was suggested that the previous transfer to England did the respondent "no good" and that he "hated it". Complaints were directed at [current facility]. It was submitted that the respondent's (and their) father is getting old and the question was asked, rhetorically, whether this would be the last time he would see his son. Where the respondent will come back to was also an issued canvassed. The respondent's brother, who appeared on the last occasion, was said to be on holidays and, therefore, not participating today.  Reference was made to emails sent by family to Ms. Curry and I dealt with that on the last occasion on the 12^th March, making it clear that I would give due consideration to any evidence proffered.  It was submitted that [current facility] has been "atrocious" to the respondent and "the worst place he has ever been".  Although I stress that these were submissions underpinned by no evidence, assertions were made in relation to what is said to have been past history, and what is said to have prompted unhappiness on behalf of family who believe there should be a suitable place for the respondent in Ireland and who expressed, as I say, complaints including around the question of access. 

 

24.         Mr. Brady, in response, made submissions with reference to the 10^th March email sent by family and what emerges is that the complaints raised have been very appropriately sent by the H.S.E. to Nua Healthcare to be addressed. 

Complaints

25.         Again, without intending any disrespect whatsoever to family and conscious that on the 12^th March the view expressed by the respondent's brother was that this Court should direct an investigation into historic care, I want to make the following clear. Because the respondent's family have not chosen to proffer any evidence in response to today's application, but would appear to have complaints, I am in a position where I am not aware whether any complaint was made at the point in time when any particular concern arose. I am not aware of to whom such a complaint was directed.  I am not aware of when such a complaint was made or the outcome of any complaint.  Still less is there any evidence before me of a lack of care or any deficiency in relation to the level of care which the respondent has been provided with.  I say that in circumstances where no expert evidence is needed for me to say that there are a range of bodies, including creations of statute, to which complaints can be addressed.

 

No evidence of lack of care

26.         Obvious entities include the H.S.E. itself as well as of course Nua Healthcare who operate the placement.  The Health Information and Quality Authority is another creation of statute which has an oversight role in relation to residential care facilities; and, perhaps more importantly, the Mental Health Commission again, a creation of statute, which regulates 'approved centres' and ensures compliance with the Mental Health Act.  I think it is important that I make the foregoing clear because I simply have no evidence that there has been any want of care, despite the submissions, doubtless made in good faith by the respondent's sister, who,  in substance, complains about care.

 

No suitable placement in this State

27.         There is also very clear evidence that, much as one wishes it to be otherwise, there is, in fact, no suitable placement within the jurisdiction which can meet the current care needs of Mr. [A].

 

 

 

Investigation into past care

28.         As to the suggestion made on the last occasion that this Court should direct some sort of enquiry in relation to the past care afforded to the respondent, I want to make a couple points.  First, there is simply no evidential basis for any such direction but, more importantly, this Court has no jurisdiction whatsoever to do so. The jurisdiction 'at play' is this Court's 'Inherent Jurisdiction' and, for the benefit of Ms. [B], that is, in simple terms, a power which this Court enjoys to 'fill a gap' where there is no legislative or statutory framework which can be invoked to vindicate and protect fundamental rights of a vulnerable individual who lacks capacity.  However, in the manner I have touched on, there are statutory bodies to whom complaints in relation to quality of care can be made; and it would be for this Court to act entirely without power to direct an enquiry into the respondent's care history.

 

Guardian ad litem

29.         Returning to the last elements of the evidence before me, I have the benefit of reporting from Ms. Aileen Curry, solicitor, who has long been the respondent's guardian ad litem. Ms. Curry has met with him on numerous occasions since June 2018 when he was, at that stage, resident in [previous facility] in [City in the UK]. In addition, Ms. Curry has met with the respondent in his [named Irish service provider] placements in [previous facility] and in [current facility]. She also acted on the wardship side as independent solicitor for the respondent in the context of a review of the detention aspects of orders made in wardship.  

 

January - Respondent's opposition

30.         I have the benefit of an affidavit from Ms. Curry detailing a meeting which took place on the 28^th January. That was facilitated by Ms. [K] and, at that stage, the views expressed by the respondent were as follows, and I now turn to certain averments made in February by Ms. Curry, who plainly explained the nature of today's application to the respondent.  From para. 16 Ms. Curry avers as follows:

 

"I explained the reason as set out by Dr. Kirwan that although Mr. [A] has made progress in [current facility in Ireland] his team feels that his progress has plateaued and that a transfer to [proposed facility in England] would allow for more intensive rehabilitative work to be carried out with a view to improving his general overall functioning. Mr. [A] is of the view that he is well settled in his current setting, he said that he is content there and does not wish to transfer anywhere else. In particular he was adamant he did not wish to be transferred to [proposed facility]. Mr.[A] does not accept he needs to transfer to [proposed facility].  He said 'No I'm not going there, no way, I was two and a half years there, it did no good, I didn't need to go there'."

 

31.         Later Ms. Curry avers: "Mr. [A] became quite angry he said "I never did anything to deserve this, there is no way I am going and that's the end of it I'm not going". She proceeds to aver: "Mr. [A] was agitated and heightened I thanked him for speaking to me and I left without further engagement' and she summarises Mr. [A]'s then views, as follows:

 

"Mr. [A] does not wish to be a ward of court and would welcome his discharge from wardship;

 

he is content where he is and insofar as orders are sought under the court's inherent jurisdiction to provide for him to remain in his current setting he does not object to those; and

 

he does not wished to be transferred to [proposed facility]..."

 

Participation

32.         She avers at para. 22 that she spoke to Mr. [A] on the 11^th February and the latter was adamant that he did not wish to participate in the court hearing next scheduled. 

 

Benefit

33.         I pause to say that the respondent's view that he does not need to go to [proposed facility] and that he did not benefit from treatment there is a view not based on objective reality. The evidence before this Court includes sworn averments from clinicians that the respondent, in fact, benefited from his previous placement; and benefited to the extent that he was deemed suitable for a stepdown placement to a low secure setting at [previous facility] following which he returned to this State.

 

Need

34.         The clinical view that he was repatriated prematurely is a view given with the benefit of hindsight and takes nothing away from the fact that he benefited from care in [proposed facility].  Furthermore, there is overwhelming clinical evidence that the respondents current care needs simply cannot be met in this State, at present, and that his needs are such that admission to [proposed facility] for care is necessary and will benefit him.

 

March - change in Respondent's views

35.         Remaining with the topic of the respondent's views, when the matter was before the court on the 12^th March, Ms. Curry - through Counsel - informed me that the respondent's view had changed, in that he was expressing a wish to transfer to England. That remained the position when the matter was last before this Court 'for mention' on the 26^th March; and this morning I received the latest affidavit from Ms. Curry in which she avers that since the 12^th March the respondent has indicated consistently his wish to transfer from his current care setting to England.

 

36.         Ms. Curry further avers that she has remained in regular contact with the respondent since Wednesday the 26^th March with a view to establishing whether there was any change in his views regarding transfer. Details are given in her latest affidavit regarding that contact, in particular, on the 26^th March, the 28^th March and yesterday. What emerges is that at the present time the respondent's clearly expressed wish remains to transfer to England as soon as this can be arranged.

 

37.         Ms. Curry also quotes and exhibits a 26^th March update from Dr. [J] who explained why on balance she believes that transfer to the U.K. is necessary, characterising the respondent as receiving "sympathetic containment with little to no chance of his situation changing". Dr. [J] also opines, as of the 26^th March, that the respondent "needs a 'reset'; this requires a level of relational security that is not available in Ireland.

 

Independent view

38.         Dr. [J] provided a very detailed report at the request of Ms. Curry which I also received this morning and, in addition to considering the relevant reporting, Dr. [J] met with the respondent as recently as Sunday the 23^rd March when she carried out an assessment. Mr. Leahy very helpfully quoted at some length from Dr. [J]'s reporting which comprises a view - it must be underlined - from an expert clinician independent of the H.S.E.  It also comprises a very comprehensive assessment of capacity from a functional perspective in which Dr.[J] explains in detailed terms why she holds the view that the respondent lacks the capacity to make decisions regarding his treatment, and where it should be provided, and is someone who because of his illness is at risk of causing immediate and serious harm to self and to others. It is sufficient for today's ruling to quote as follows from pgs. 20 and 21 of Dr. [J] 1^st April report, wherein she states inter alia:

 

"I am also aware that Mr. [A]'s family have concerns that transfer to England is being considered. I understand that Mr. [A]'s interaction with his family is variable and I am not able to ascertain whether these relationships are meaningful to Mr. [A]. While I can empathise with Mr. [A]'s family, in the absence of any possibility for betterment of his position, treatment and progress in Ireland there is no alterative option but to consider transfer to England."

 

39.         Dr. [J] conclusions (at s. 8 on internal pg. 21) are as follows:

 

"8.1 Having considered all of the evidence and based on my clinical assessment I am of the opinion that Mr. [A] is a 55 year old man with diagnosis of mild intellectual disability, ASD, history of schizoaffective disorder and mixed personality disorder.

 

8.2 I am of the opinion that he lacks capacity and benefits from the protections afforded by orders made under the inherent jurisdiction of the High Court.

 

8.3 It is my opinion that Mr. [A]'s level of risk and treatment needs are beyond what can safely be provided in Ireland and there is no alternative option but to consider transfer to [proposed UK facility] hospital.

 

8.4 It is my opinion that without such transfer Mr.[A] will not have the opportunity to be provided with treatment in a facility that can meet his requirements for relational security. He will be denied the possibility of improving his life and progressing towards a greater level of independence".

 

Uncontroverted medical evidence

40.         I pause to say that this medical evidence, and all the other medical evidence I have referred to, is uncontroverted. There is no clinician who differs from any of those views which I have referred to. 

 

Conclusion

41.         Drawing this ruling to a conclusion I want to state for the benefit of family and hopefully it will be of some comfort to Ms. [B] that decisions by this Court flow, as they must, from a consideration of the evidence before it.

 

42.         Furthermore, no single element or aspect of the evidence is determinative; and, to give a practical example, it is clear that the respondent's currently expressed wish is to transfer to England.  However, I am very conscious that until relatively recently he expressed, in trenchant terms, a very different view.

 

43.         Furthermore, while family have not proffered any evidence, I am very clear that family members remain opposed to a move to [proposed facility].  

 

44.         It is no criticism of family to point out that this is an application which is not made for orders which will limit their liberty or autonomy. It is an application which concerns an adult and his needs and his rights. In other words, no family member is a proxy consent giver. 

 

45.         However, I want to emphasise that - as hopefully is apparent - this court is always willing to hear and to take due account of the views of family, by reason of the natural love and affection that they bear for, in this case, the respondent.

 

46.         Carefully considering all the evidence and balancing competing constitutional rights - including rights to liberty, to life, to bodily integrity and autonomy, as well as equal access to care, I am satisfied that the following is the appropriate outcome to today's application. In other words, making the orders sought which, in essence, permit a transfer to [proposed facility] which is a specialist placement of a type not currently available in Ireland so that the respondent can receive specialist care he needs unavailable in this State, is both a necessary and a proportionate response by the court.

 

47.         Why is this so? It is so because these orders are necessary to vindicate and protect his fundamental rights - the rights of a vulnerable individual who lacks capacity to make the relevant decisions 'at play', in particular regarding his care and treatment and where he should reside to avail of it. 

 

48.         To look at it another way, a failure by this Court to make orders in the terms sought would, on the basis of the evidence, result in a situation where this vulnerable gentleman would have little to no chance of his current situation changing; and it would result in a situation where he would remain in a placement which cannot safely address his current treatment needs and the level of risk currently arising.

 

49.         In other words, to refuse today's application and to agree with the objections with family would deny the respondent of the opportunity to receive treatment of the type he needs in a facility which meets his needs, in the absence of any alternative in this State.

 

50.         It is also appropriate to say that because there is no placement in Ireland which will better meet his needs orders which provide for him remaining in [current facility] until a place in [proposed facility] becomes available are both necessary and proportionate.

 

51.         For the sake of clarity, the evidence certainly supports each of the matters which according to (i) to (ix) inclusive of the draft order this Court is satisfied of and for the sake of clarity and completeness I just finally want to touch on the very helpful 'checklist' which is referred to in the judgment of the 8^th December 2022 by Mr. Justice Mostyn in the matter of the H.S.E. v. Florence Nightingale Hospitals Limited [2022] EWCOP 52 [relevant to an application for recognition and enforcement of this court's order by the Courts of England and Wales: As to question one the answer is no; question 2 is not applicable; question is 3 is a matter for the courts in the neighbouring jurisdiction; question 4 must be answered no; the answer to question 5 is yes; to question 6, the answer is no; question 7 is yes; question 8 also yes; question 9 is yes; question 10 is no; question 11 is no; question 12 yes, question 13 is not applicable; questions 14 and 15 are for the English courts; questions 16 to 19 are all yes]. 

 

52.         Given the nature of the order I am granting today for the reasons I have tried to explain, they must be the subject of periodic and intensive review, given that they trespass on rights.