The High Court has ruled that the continued hospital accommodation of an anonymised child, Miss X, was not in her best interests and was detrimental to her welfare. It found that the Health Service Executive (HSE) had unlawfully interfered with her rights by placing her in hospital and failing to arrange her discharge to a safe, suitable residential setting.
The judgment was delivered by Mr Justice Max Barrett on 18 October 2021. It records that the child, described as an adolescent with a disability, had been accommodated in a room beside a busy emergency department from 25 August 2021. The court said she had spent weeks in isolation without education, exercise or contact with peers. Evidence from her guardian ad litem described the conditions and their effects; the judge found the situation markedly detrimental to her health, development and welfare.
The court traced the HSE’s knowledge of the need for residential care or intensive home support to February 2020. It noted that the HSE had communicated in June 2021 that an alternative residential place had been located and might take up to eight weeks to arrange. No place was available when the child entered hospital in August. The HSE later identified a provider, Positive Futures, but estimated the placement would take 12 to 16 weeks to become ready. The court rejected the HSE’s argument that the Child and Family Agency (CFA) should provide an emergency solution, finding that disability services were the HSE’s responsibility and that the CFA had no grounds to take the child into care.
The judge held that section 7 of the Health Act 2004 does not, by itself, create specific duties owed by the HSE to individual members of the public. However, he found that the HSE had acted unreasonably, at points irrationally, and had not done all that was reasonably practicable to avoid the child’s situation. He also rejected the HSE’s separation-of-powers argument.
The court granted declarations that the hospital accommodation was not in the child’s best interests and was detrimental to her welfare; that it unlawfully and disproportionately interfered with her rights, including dignity, autonomy, bodily integrity and privacy; and that a residential placement needed to be identified immediately to promote her health and welfare. The court did not itself order a transfer or specify a placement. It retained the order prohibiting publication of information likely to identify the child.
Damages were not argued at the hearing, and the judge said it was unclear whether the claim was still pursued. If it was, the court would hear further submissions on whether the legal requirements were met and on any amount. The judge indicated that costs should be borne by the HSE, with costs orders in favour of the applicants, the CFA and the guardian ad litem, subject to a possible brief hearing if a party disagreed.