A Health and Social Care Trust and MR O and MR R
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NIFam 23 |
| Date | 09 November 2020 |
| Court | Family Division (Northern Ireland) |
1
Neutral Citation No: [2020] NIFam 23
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE11305
ICOS No: 2020/0029
Delivered: 09/11/2020
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
FAMILY DIVISION
OFFICE OF CARE AND PROTECTION
___________
Between:
A HEALTH AND SOCIAL CARE TRUST
Plaintiff
and
MR O
and
MR R
Defendants
___________
Mr Potter (instructed by DLS Solicitors) for the Applicant Health Trust
Mr Lavery QC with Ms Kyle (instructed by Wilson Nesbitt Solicitors) for Mr R
Mr Heraghty (instructed by Higgins Holywood Deazley) for Mr O
Mr Sands (instructed by the Crown Solicitor’s Office) for the Department of Justice and
the Department of Health
Ms Connolly QC with Ms Murphy (instructed by the Official Solicitor) as amicus
Mr Simblet QC (instructed by the Human Rights Commission of Northern Ireland) as
intervenor (in writing)
The Attorney General of Northern Ireland, Ms Brenda King, as intervenor (in writing)
___________
KEEGAN J
Nothing must be published which would identify the persons who are the
defendants in this case as they are patients. The case has been anonymised on
that basis.
2
Introduction
[1] This case arises in the context of mental health law. I, by agreement of the
parties, heard the two cases together given that they both raise similar issues which
are of a complicated nature. In broad terms both Mr O and Mr R were made the
subject of hospital orders with a special restriction pursuant to the Mental Health
(Northern Ireland) Order 1986 (“the Mental Health Order”). In the case of both
patients their detention has been examined before the Mental Health Tribunal. In
both cases the Mental Health Tribunal (now called the Review Tribunal) has
determined that a conditional discharge would be appropriate but has adjourned a
finalisation of the cases due to a perceived difficulty in achieving this within the law.
The difficulty flows from a decision of the Supreme Court in MM v Secretary of State
for Justice [2018] UKSC 60 which determined that a tribunal could not impose terms
as part of a conditional discharge which amounted to a deprivation of liberty
pursuant to Article 5 of the European Convention on Human Rights (“ECHR”). This
has led to an impasse which affects each patient in different ways. Mr O remains in
Muckamore Hospital and urgently seeks transfer to a community placement. Mr O
has brought a habeas corpus application during the course of this application which is
pending before another court. Mr R has left Muckamore under temporary leave
provisions and has been living in a community based setting for the past eighteen
months.
[2] This case has come to me after a judicial review brought by Mr O. That was
directed at the Trust’s failure to bring a declaratory application. Paradoxically, now
Mr O does not support a declaration being granted. The representatives for Mr R
query the court’s jurisdiction under the inherent jurisdiction but in final
submissions; “welcome any initiative that would preserve his position in his current
placement.” The Department of Justice appeared and was represented in these
proceedings. Given the issues at play I also joined the Department of Health. I
asked the Official Solicitor to act as amicus. The Human Rights Commission applied
to intervene in Mr O’s case and have done so on paper. Finally, the Attorney
General of Northern Ireland has appeared as an intervenor and filed a written
argument. I am very grateful to all for assisting the court. I was asked to determine
this case on the basis of the papers put before me and the legal submissions.
[3] From the outset I have encouraged a solution focussed approach but as will
become apparent that has not yielded any fruit as yet and so the issue remains
whether I should exercise my inherent jurisdiction in the case of Mr O and Mr R who
on the evidence currently available have capacity to consent to care arrangements in
the community which amount to a deprivation of liberty.
Mr O’s Case
[4] This applicant was born in 1988. He was made the subject of a hospital order
by the Crown Court on 2 March 2018 having been found to suffer from a severe
mental impairment pursuant to Article 49, 49A and 50A of the Mental Health
3
(Northern Ireland) Order 1986(“the Mental Health Order”). It was also pursuant to
Article 47 of the Order, having regard to the offence, the antecedents of the
defendant and the risk of the defendant committing further offences if set at large
that it was necessary for protection of the public for him to be subject to the further
special restrictions set out in Article 47 without limit of time. The offences were
found proven after a factual hearing as Mr O was found unfit to be tried. These
were sexual offences of gross indecency with or towards a child x 2 (a male cousin
when Mr O was aged 11-13); indecent assault on a male x 1 (the same male cousin
when Mr O was aged 11-13); sexual assault of a child under 13 x 1 (a female cousin
(2 years younger) when Mr O was 11-20); indecent assault on a female x 7 and
threats to kill x 2 (a female cousin when Mr O was 26).
[5] There is some history set out in the reports which I have found useful as
follows. The first assessment of this patient in January 1994 raised issues of learning
disability and query epilepsy. A test of functioning was undertaken in November
1997 which produced an IQ of 53 but it was thought that this may be low due to a
lack of interest in the testing. Mr O was reported to suffer from a speech
impediment. There is a previous history in 2008 of arson and other offences and in
2008 issues of self-harm are recorded. There was an attendance at Muckamore
Hospital in October 2008 as a result of the arson offence which resulted in discharge.
The overall diagnosis was one of borderline learning disability. There are also issues
of cannabis and drug misuse noted in the papers. A diagnosis of global
developmental delay is provided. Mr O is noted to have been co-operative and
active in engagement with psychotherapeutic work and sexual behavioural work. I
also note the description of Mr O as vulnerable and reference to him being bullied in
the community due to the nature of his offences and the potential for him to suffer
abuse.
[6] Mr O made an application for discharge subsequent to this Order being made.
The hearing at the Mental Health Review Tribunal (“the Tribunal”) took place on 12
June 2020. Evidence was heard from the Responsible Medical Officer (“RMO”) and
a consultant forensic psychiatrist. Following this Mr O was considered to have
capacity to decide issues in relation to his living arrangements. The decision of the
Tribunal chaired by Ms Fenton has been made available to me and it states that the
decision of the panel was that the applicant was suffering from a mental impairment
but it was not of such a nature to warrant continued detention. However, the
Tribunal decided that conditions were appropriate given the issues in this case and a
conditional discharge was the preferred option because that would allow for a recall
to hospital. No decision was actually reached until the deprivation of liberty issue
was determined as all parties agreed that the current care plan represented a
deprivation of liberty. The case was adjourned on that basis and that remains the
current position.
[7] The reports in this case from the Consultant Psychiatrist, Dr Milliken, date
back to February 2019. I extract some salient details as follows. The first report
refers to good engagement. Mr O was reported to have a severe mental impairment
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