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Northern Irish cases

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* DOL in NI Belfast Health and Social Care Trust v PT [2017] NIFam 1"The court considers that four questions need to be addressed in this [Northern Irish] case: (a) Does PT lack capacity? (b) Is there a gap in the existing legislation, thereby permitting the exercise of the inherent jurisdiction? (c) Is the care plan in PT’s ‘best interests’? (d) Is the care plan compliant with the ECHR? ... There is therefore no difference between the statutory test and the existing common law tests. Hence, in determining the capacity of PT in respect of welfare matters, the court can apply the test set out in the Mental Capacity Act 2005, even though that legislation does not apply in Northern Ireland, as it is in line with the existing common law tests. ... I find that PT lacks capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. ... Therefore, it is clear there is a lacuna or ‘gap’ in the 1986 Mental Health (NI) Order and as a result, a care plan which involves a deprivation of the liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986. Such deprivation of liberty can only be sanctioned by the High Court acting under its inherent jurisdiction. ... I find that continuous supervision by his foster mother JB and the locking of the external doors of the home and car doors whilst it is in motion are in his best interests as they protect his health and physical safety. The provisions also ensure he can continue to live with JB, with whom he has a special bond. For this reason I find that it is in his emotional best interests to remain in this placement. This can only happen if the proposed deprivation of liberty is permitted. ... Therefore, before the court exercises its inherent jurisdiction it must fully address the following questions, in order to be satisfied that any order it makes complies with the ECHR. (a) Is Article 5 is engaged? Does the care plan contain provisions which amount to a deprivation of liberty? (b) If so, are the provisions of Article 5 (1) (e) met? (c) If so, is the detention in accordance with the objective of Article 5 and is it in accordance with a procedure prescribed by law? (d) Is the proposed Order compliant with the provisions of Article 5 (4)? ... I also find that although this is a benign regime, in accordance with the definition set out in Cheshire West, PT’s care plan involves a deprivation of liberty because there is constant supervision and he is not free to leave the home as the external doors are locked and car doors are locked whilst he is present. ... I find that the provisions of Article 5 (1) (e) are met. There is objective medical evidence before the court indicating that PT is of unsound mind, this condition is persisting and is of a kind to warrant his compulsory confinement as PT needs supervision to prevent him causing harm to himself. ... I find that the care plan represents the minimum deprivation necessary to achieve the aim of Article 5, namely to ensure that PT does not cause harm to himself. ... In accordance with the requirements of Article 5 (4) the Court order must provide for adequate review at reasonable intervals. The Trust seeks an order of 12 months duration. I find that this is a reasonable interval to review the order as the Care Plan and Guardianship are reviewed annually. To accord with the requirements of Article 5(4) the Order should also a include liberty to apply at short notice provision. The review provisions must also ensure that there is sufficient medical evidence before the court to enable it to review whether there still persists an unsoundness of mind of a degree or kind to warrant PT’s compulsory confinement. In addition it is necessary to build other safeguards into the Order including PT’s right to legal representation." 2017‑02‑23 21:22:02 2017 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Northern Irish cases

JMCA v The Belfast Health and Social Care Trust [2014] NICA 37, [2014] MHLO 147 — "Treacy J held that the supervision of this appellant was with legal authority and lawful and that the 1986 Order did authorise the guardian to take the impugned measures in the circumstances of this case. Subsequent to his decision the Supreme Court examined the concepts of deprivation of liberty and restriction of liberty in the case of patients suffering from mental health difficulties in Cheshire West and Chester Council v P [2014] UKSC 19. It is unnecessary for us to set out the facts or reasoning in that decision. It is, however, now accepted by the Trust that the guardianship order did not provide any mechanism for the imposition of any restriction on the entitlement of the appellant to leave the home at which he was residing for incidental social or other purposes. ... Mr Potter on behalf of the appellant in this case recognised that this left a lacuna in the law. That gap had been filled by Schedule 7 of the Mental Health Act 2007 in England and Wales which introduced deprivation of liberty legislation into the Mental Capacity Act 2005 providing a mechanism for the lawful restriction on or deprivation of liberty of a person such as the appellant. It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction." 2016‑11‑29 21:00:14 2014 cases, Deprivation of liberty, Judgment available on Bailii, No summary, Northern Irish cases, Transcript

MH v MHRT for NI [2014] NIQB 87, [2014] MHLO 48The patient challenged the MHRT's decision on the grounds that "(i) the approach of the MHRT was unlawful and that the MHRT had not adopted the narrow focused based approach required under Article 77(1) and Article 2(4) of the Order and, (ii) the MHRT had misunderstood the meaning of "discharge" and had failed to take into account the applicant's stated intention which was to remain in hospital as a voluntary patient if discharged from detention". These challenges were rejected. The tribunal's decision was the only reasonable one on the evidence. 2014‑07‑22 20:07:53 2014 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Transcript

X v MHRT for NI [2012] NIQB 1In previous judicial review proceedings, X had established that in NI where there is a mandatory duty to discharge it cannot lawfully be deferred. He now sought to bring a negligence and false imprisonment claim against the Tribunal and the Trust for his detention during a six-week deferral period. To sue the Tribunal he required leave of the High Court (under Article 133 Mental Health (Northern Ireland) Order 1986, the equivalent of s139): the test is whether on the materials immediately available to the court the complaint deserves fuller investigation. Leave was refused because there had been a difficult question of statutory construction and no bad faith or lack of reasonable care. 2012‑03‑24 15:50:12 2012 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Transcript

Re JR49 (Application for Judicial Review) [2011] NIQB 41The order authorising removal from a hospital in NI to a hospital in England pursuant to MHA 1983 s82 was quashed. 2011‑05‑26 21:22:11 2011 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Transcript

SSNI, Re Judicial Review (Oswald Brown) [2006] NIQB 94It was lawful for the hunger-striking prisoner, who lacked capacity, to be given nutrition. 2010‑01‑12 19:35:45 2006 cases, Best interests, Brief summary, Judgment available on Bailii, Northern Irish cases, Transcript

Re BS [2009] NIFam 5A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place. 2009‑04‑12 21:19:22 2009 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Other capacity cases, Transcript

Magowan, Re Judicial Review [2009] NIQB 6 — Unsuccessful judicial review of failure of social services to make arrangements which would have allowed discharge from hospital. 2009‑04‑12 21:16:01 2009 cases, Community care, Judgment available on Bailii, No summary, Northern Irish cases, Transcript

X, Re Judicial Review [2009] NIQB 2Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge 2009‑01‑11 15:16:52 2009 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Powers, Transcript

R v Warwick [2008] NICC 42As the Mental Health (Northern Ireland) Order 1986 does not allow detention for personality disorder, the risks in this case could only be addressed by the imposition of a discretionary life sentence (which would be followed by a transfer to Carstairs) rather than a hospital order. 2008‑12‑06 15:01:30 2008 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Other criminal law cases, Transcript

McGrady, Re Application for Judicial Review [2003] NIQB 15(1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished. 2008‑11‑27 17:32:08 2003 cases, Bias cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Northern Irish cases, Transcript

McGee, Re Judicial Review [2007] NICA 38The detention of the claimant under Article 7 of the Mental Health (NI) Order 1986 (similar to s5(2) MHA 1983) following a MHRT decision to discharge was lawful: (1) the authorities had formed the bona fide opinion that his mental state had since deteriorated; (2) Article 7 applied since the claimant had not divested himself of his in-patient status. 2008‑02‑23 00:56:58 2007 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Re-sectioning after hearing, Transcript

R v Francis [2008] NICA 6Both hospital orders to which the claimant was subject were quashed, on the basis that when sentenced he had not been suffering from severe mental impairment as defined in the Mental Health (Northern Ireland) Order 1986. 2008‑02‑23 00:38:37 2008 cases, Brief summary, Hospital order cases, Judgment available on Bailii, Northern Irish cases, Transcript