“The Five-Fold Safeguard Framework”: High Court Clarifies the Pre-Conditions for Deprivation of Liberty under its Inherent Jurisdiction – Comment on HSE v DD [2025] IEHC 353

1. Introduction

In HSE v DD Ms. Justice Emily Egan was asked to authorise the transfer and short-term detention of a 22-year-old man (“DD”) with autism, moderate intellectual disability and complex sensory needs, from his family home in County Mayo to a specialised stand-alone facility in the south-east for a 12-16-week multidisciplinary assessment. The application, brought by the Health Service Executive (“HSE”), was fiercely opposed by DD’s mother. Central to the case were (i) the scope of the High Court’s inherent jurisdiction to protect an adult who lacks capacity where statutory mechanisms are inadequate, and (ii) the safeguards that must accompany any court-authorised deprivation of liberty.

The judgment consolidates and refines earlier authorities by expressly articulating a Five-Fold Safeguard Framework that must exist before the court will sanction detention or transfer in the absence of a statutory scheme. This commentary unpacks the decision, its legal reasoning, and its likely ripple-effects for Irish capacity law and disability care.

2. Summary of the Judgment

After eight case-management hearings, extensive affidavit evidence, independent expert reports and oral testimony, the Court held:

DD lacks capacity to decide on his accommodation and personal welfare (per the Assisted Decision-Making (Capacity) Act 2015 (“ADMC Act”) functional test).
A comprehensive, neutral-environment assessment is urgently required and cannot effectively be carried out at home; no nearer placement is available.
The proposed transfer constitutes a deprivation of liberty but is the least restrictive means of protecting DD’s constitutional rights to life and bodily integrity.
The Court’s inherent jurisdiction is therefore engaged, but only on satisfaction of five identified safeguards (independent evidence; representation of DD’s voice; a deferred period for collaborative transition planning; regular court reviews; and no decision on long-term placement without further hearing).
Balancing DD’s rights to autonomy/liberty against his rights to bodily integrity and future welfare, the Court authorised the transfer for 12-16 weeks, subject to the transitional and review mechanisms.

3. Analysis

3.1 Precedents Cited and their Influence

DG v Eastern Health Board [1997] IR 512 – Source of the High Court’s modern articulation of inherent jurisdiction. Justice Egan re-affirmed Hamilton CJ’s tripartite description (constitutional, statutory and incidental powers) as the doctrinal foundation.
HSE v VF [2014] 3 IR 305 – Emphasised that court-ordered detention of an adult is a “serious intrusion” and must be justified on the balance of probabilities and be proportionate. Egan J. adopted VF’s proportionality template.
KK (No. 2) [2023] IEHC 565 (Hyland J.) – Offered a structured five-stage rights-balancing exercise, now explicitly applied to DD (identify restriction; affected rights; rights sought to be protected; balancing; proportionality).
Re a Ward of Court (withholding medical treatment) [1996] 2 IR 79 – Authority for the proposition that the Court, not the family, is ultimate arbiter of best interests; yet familial views carry “considerable weight”. Used to calibrate the respect given to DD’s mother’s objections.
HSE v ND (Sup. Ct, 2019) – Quoted for the dual role of a guardian ad litem: conveying the individual’s wishes and giving an independent opinion. Justified relying on Ms Dillon’s reports.

3.2 Legal Reasoning

The Court’s reasoning can be distilled into sequential steps:

Capacity Determination – Applying s.3 ADMC Act, expert Dr Curtis found DD unable to understand, weigh or communicate decisions regarding accommodation or supports; the Court accepted this uncontroverted evidence.
Existence of a Legislative Lacuna – No statutory scheme (e.g. under Part 13 ADMC Act, not yet commenced) authorises the HSE to detain an adult in these circumstances. The lacuna activates the Court’s inherent jurisdiction.
Necessity & Proportionality – Expert consensus (Dr Hyland, Mr Deane, Ms Rochford) showed that the home environment could not deliver the structured, daily multidisciplinary evaluation that DD requires. The Placement, though distant, is the only available unit with capacity. Benefits (prospect of independence, community engagement and better health) outweigh temporary distress and separation. Alternative community services were explored and ruled out.
Rights Balancing – Utilising Hyland J.’s framework in KK, Egan J. weighed (a) the negative impact on liberty/autonomy and family life against (b) the positive protection of bodily integrity, life and equal access to healthcare. The latter prevailed. The proposed measure is “rationally connected” and “least restrictive”.
The Five-Fold Safeguard Framework – The Court crystallised a checklist—independent evidence; voice of the person via GAL; deferred engagement/transition period; periodic court reviews; and no prejudgment of long-term placement. These conditions become the touchstone for future applications.

3.3 Impact on Future Law and Practice

The judgment is likely to have four immediate effects:

Procedural Template: Judges and practitioners now have an explicit “Five-Fold Safeguard” to structure deprivation-of-liberty applications until Part 13 ADMC Act (dealing with detention in approved centres) is commenced.
Transition-Plan Emphasis: The Court’s insistence on deferring the order for two weeks to co-design a sensitive transition plan foregrounds person-centred planning as a legal prerequisite, not merely best practice.
Geographical Constraints Recognised but Not Determinative: While distance from family is a significant factor, the Court clarified it will not outweigh urgent clinical needs where no closer facility exists. Expect the HSE to face increased pressure to expand regional capacity.
Guardians ad Litem Strengthened: The judgment re-affirms the GAL as the conduit for the voice of persons with profound communication barriers. Funding and appointment of GALs in adult protection cases may become routine.

4. Complex Concepts Simplified

Inherent Jurisdiction: A court’s power to act where no statute covers the situation, derived from its constitutional role to protect rights.
Deprivation of Liberty: Any placement where a person is under continuous supervision and cannot leave at will; requires court scrutiny for proportionality.
Least Restrictive Alternative: A principle that any interference with liberty must be the smallest possible step that achieves the protective goal.
Multidisciplinary Assessment: Evaluation by various professionals (psychologist, OT, speech therapist, behaviour specialist) working together to build a holistic care plan.
Transition Plan: A structured, step-by-step itinerary (visual aids, gradual visits, family involvement) aimed at reducing anxiety and ensuring smoother relocation.

5. Conclusion

HSE v DD is more than an individual care decision; it is an important doctrinal statement on how Irish courts will navigate the gap between modern capacity legislation and the practical realities of complex disability care. By distilling prior case-law into a Five-Fold Safeguard Framework and insisting on a collaborative transition plan, Justice Egan provides a roadmap that balances autonomy, family bonds and the right to health. Until the full architecture of the ADMC Act is operational, this judgment will stand as the leading authority on court-authorised deprivation of liberty for adults lacking capacity in Ireland.