A Health and Social Care Trust v JU
| Jurisdiction | Northern Ireland |
| Judge | McFarland J |
| Neutral Citation | [2023] NIFam 12 |
| Date | 07 August 2023 |
| Court | Family Division (Northern Ireland) |
1
Neutral Citation No: [2023] NIFam 12
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McF12230
Court Ref: DJ 2022/63
Delivered: 07/08/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
FAMILY DIVISION
OFFICE OF CARE AND PROTECTION
___________
Between:
A HEALTH AND SOCIAL CARE TRUST
Plaintiff
v
JU
Defendant
___________
Mr M Potter (instructed by the Directorate of Legal Services) for the Trust
Ms S Kyle (instructed by Luke Curran solicitors) for the defendant
Ms Anyadike-Danes KC (instructed by the Commissioner for Older People for
Northern Ireland) for the Notice Party made a written submission
___________
McFARLAND J
Introduction
[1] This judgment has been anonymised to protect the identity of an elderly lady.
I have used the cipher JU. These are not her initials. Nothing can be published that
will identify JU.
[2] The Trust seeks an order under the inherent jurisdiction of the High Court to
deprive the defendant of her liberty.
[3] The defendant is a lady in her early seventies and resides under a
guardianship order in a private residential nursing home (“the nursing home”) in a
rural setting. She is married but estranged from her husband. She has two children
and would have contact with them on an occasional basis. She has suffered from
long-standing mental health problems and has diagnoses of persistent delusional
disorder, emotionally unstable personality traits and recurrent depressive disorder.
2
She contests these diagnoses, but for the purposes of this judgment it is not
necessary to make any ruling on this specific issue.
[4] Over the years she has had a number of hospital admissions, the last of which
was under the hospital order provisions of the Mental Health (NI) Order 1986 (“the
MHO”) in October 2019. References in this judgment to ‘hospital’ orders and
‘guardianship’ orders refer to Part II MHO orders and not Part III Orders which
relate to criminal cases. She remained under the hospital order but was then
transferred to the nursing home in July 2021. In March 2022 she became the subject
of a guardianship order under the MHO.
[5] The Trust is seeking an order to deprive her of her liberty because it considers
that it may require powers to ensure her safe management should her condition
deteriorate. The extent of the powers are set out in a draft order placed before the
court:
(a) [The Trust] or its servants or agents may take such measures as are deemed
proportionate and necessary and in [JU’s] best interest that may include:
(i) Placing her under significant or constant monitoring and supervision
as may be appropriate;
(ii) Preventing her from leaving the place of residence;
(iii) Returning her to her place of residence;
(iv) Taking such other measures to restrict her liberty or deprive her of her
liberty as may be reasonably necessary and appropriate in the
circumstances.
(b) And in exercising these powers the [Trust] shall respect [JU’s] human rights
and seek to abide by the least restrictive alternative principle.
[6] The order sought by the Trust is under the inherent jurisdiction of the court
and would be on an anticipatory and contingent basis. Given the fact that social
work and medical employees of the Trust are unlikely to be present on a regular
basis at the nursing home, the measures being sought by the Trust are to enable the
nursing home staff, acting as the Trust’s agents, to exercise these powers. I will
abbreviate deprivation of liberty by using the acronym “DOL.”
[7] JU opposes the Trust’s application.
Does JU lack capacity?
[8] It is agreed evidence that the Trust cannot show that JU lacks capacity. At its
height the evidence is that she has borderline capacity, but with a presumption of
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