Inherent Jurisdiction to Authorise Cross-Border Transfer of Adults Lacking Capacity for Specialist Care

Introduction

This commentary examines the High Court of Ireland’s ex tempore ruling in “In the Matter of ‘A’ and Inherent Jurisdiction and Transfer out of the Jurisdiction” ([2025] IEHC 217, delivered 3 April 2025 by Mr Justice Heslin). The Health Service Executive (“HSE”) applied under the Court’s inherent jurisdiction to authorise the transfer of an Irish adult with complex neurodevelopmental and psychiatric needs from an approved centre in Ireland to a specialist medium-secure facility in the United Kingdom. The respondent (“A”) is an Irish citizen in his fifties, diagnosed with autism spectrum disorder, mild intellectual disability, schizoaffective disorder and anxiety. His family opposed the transfer, arguing that a domestic placement should be found. The decision turns on the Court’s power to “fill a gap” where statutory frameworks cannot meet the needs of a vulnerable person who lacks decision-making capacity.

Summary of the Judgment

The respondent, detained under wardship since 2017 and currently in an approved centre in Ireland, exhibits high levels of risk to himself and others, and his needs cannot be met domestically.
Specialist psychiatrists and clinical leads unanimously recommended transfer to the proposed U.K. facility (“Proposed Facility”), where prior placements had produced benefit.
The respondent initially resisted transfer but later expressed a clear wish to go to the Proposed Facility.
No evidence was furnished by the family; their objections remained unsubstantiated and unsworn.
Balancing fundamental rights (liberty, bodily integrity, equal access to care) and applying the “necessary and proportionate” test, the Court authorised:
- Continued residence and treatment in the current Irish facility until placement becomes available.
- Transfer, detention and treatment at the Proposed Facility once space arises.
The order is to be subject to periodic review given its interference with rights.

Analysis

Precedents Cited

HSE v Florence Nightingale Hospitals Ltd [2022] EWCOP 52 (England & Wales Court of Protection): A checklist for recognition and enforcement of capacity-related orders across jurisdictions, cited by reference to common questions (e.g., availability of alternative placements, proportionality, necessity).
Mental Health Act 2001: Statutory definition of “mental disorder” and regulation of “approved centres.”
Assisted Decision-Making (Capacity) Act 2015: Framework for supported decision-making and situational capacity assessments after discharge from wardship.

Legal Reasoning

The Court’s reasoning unfolds in several steps:

Inherent Jurisdiction as Gap-Filler: Where no statutory mechanism authorises detention or direction of treatment for adults lacking capacity in respect of placement decisions, the Court invokes its inherent jurisdiction to protect fundamental rights of a vulnerable person.
Evidence-Based Decision-Making: All medical and expert evidence—untested by any contrary expert—confirmed that (a) the respondent’s risk profile and needs exceed domestic capacity, and (b) specialised medium-secure intellectual disability interventions in the U.K. are necessary and beneficial.
Balancing Competing Rights: The Court weighed the respondent’s right to liberty and autonomy, his right to bodily integrity and life, and the State’s obligation to provide equal access to appropriate care. In the absence of any suitable Irish placement, authorising transfer was both necessary to protect life and proportionate to safeguard rights.
Family Views and Procedural Fairness: Although the respondent’s family opposed the transfer, they filed no sworn evidence. The Court afforded them ample opportunity to do so, addressed their submissions, and noted statutory complaint mechanisms available to them, but could not give weight to unsubstantiated assertions.
Periodic Review: Recognising the intrusive nature of detention orders, the Court required ongoing review to ensure continued necessity and proportionality.

Impact on Future Cases and the Law

This ruling establishes a clear precedent that Irish courts may:

Use inherent jurisdiction to authorise cross-border transfers when no domestic resource meets the needs of an incapacitated adult.
Require detailed, uncontradicted expert evidence to show necessity and proportionality.
Recognise changing views of the individual concerned, balancing respect for autonomy with protection where capacity is lacking.
Insist on procedural fairness to family members while refusing weight to mere submissions unsupported by evidence.

It signals to the HSE and care providers the need to develop specialist capacity in Ireland or routinely consider international cooperation when domestic services prove inadequate.

Complex Concepts Simplified

Inherent Jurisdiction: A court’s power to act when no specific law applies in order to protect rights of vulnerable persons who lack capacity.
Wardship: Historical common-law procedure by which the Court appointed itself guardian of adults of “unsound mind” for personal welfare and financial affairs.
Functional Capacity Assessment: An evaluation of an individual’s ability to understand, retain, use or weigh information, and communicate decisions—key to determining whether they can decide their own treatment or placement.
Relational Security: A therapeutic environment underpinned by stable, expert staff relationships to manage risk and foster rehabilitation.
Proportionality Test: A constitutional principle that any restriction on rights must be no more than necessary and appropriate to achieve the legitimate aim.

Conclusion

The High Court’s ruling in [2025] IEHC 217 marks a significant development in Irish capacity and mental health law. It confirms that inherent jurisdiction may extend beyond national borders to secure life-saving, rehabilitative treatment for those whose complex needs cannot be met domestically. Requiring robust expert evidence, adherence to procedural fairness, and periodic review of orders, the decision both protects fundamental rights and underscores an evolving duty on public bodies to secure appropriate specialist care—whether at home or abroad. Practitioners should note the standards set out for evidence, the necessity-proportionality analysis, and the Court’s readiness to use inherent jurisdiction where statutory frameworks leave a gap.