In the matter of an application for Judicial Review by RM (A person under disability) BY SM, his father and next friend and in the matter of a decision of a review Tribunal dated 16 February 2021
| Jurisdiction | Northern Ireland |
| Judge | McAlinden J |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] NICA 35 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 23 June 2022 |
1
Neutral Citation No: [2022] NICA 35
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McA11882
ICOS No: 21/23835/01/A01
Delivered: 23/06/2022
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY RM
(A PERSON UNDER DISABILITY)
BY SM, HIS FATHER AND NEXT FRIEND
AND IN THE MATTER OF A DECISION OF A REVIEW TRIBUNAL
DATED 16 FEBRUARY 2021
___________
Mr David Heraghty (instructed by Higgins Hollywood Deazley, Solicitors) for the
Applicant/Appellant
Mr Matthew Corkey (instructed by the Departmental Solicitor’s Office) for the
Respondent/Respondent
Mr Adian Sands (instructed by the Departmental Solicitor’s Office) for the Department of
Justice
___________
Before: McCloskey LJ, Maguire LJ and McAlinden J
___________
McALINDEN J (delivering the judgment of the court)
Introduction
[1] This is an appeal against the decision of Colton J delivered on 7 September
2021 in which he dismissed an application for judicial review brought by the
applicant/appellant seeking an order quashing the decision of the Review Tribunal
delivered on 16 February 2021 in which the Review Tribunal concluded that the
grounds for detention in hospital for treatment set out in the Mental Health
(Northern Ireland) Order 1986 were met and that the applicant/appellant should
remain detained in hospital for treatment.
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[2] The applicant/appellant is RM, acting by SM, his father and next friend. RM
suffers from severe mental impairment. He has a history of engagement with mental
health services. He does not have specific capacity to conduct legal proceedings on
his own behalf. He was born in 1988. In March 2018 he was sentenced for a series of
offences including indecent assaults of females and males, gross indecencies with or
towards a child, sexual assault of a child under 13 and threats to kill. He had
previously been determined to be unfit to plead to these charges. Having been
found to have committed the acts alleged the Crown Court imposed a hospital order
subject to special restrictions and without limitation of time pursuant to Articles 44
and 47 of the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”).
Pursuant to Article 46 of that Order he was admitted to and detained at Muckamore
Abbey Hospital on or about 13 March 2018.
[3] On 16 January 2019 he made an application to a Review Tribunal appointed
under Article 78 of the 1986 Order seeking his discharge from detention. A hearing
took place on 12 June 2020 and the Tribunal heard from, amongst others,
Dr Milliken, Consultant Psychiatrist, the applicant/appellant’s Responsible Medical
Officer. Although the Review Tribunal was satisfied that RM was suffering from
severe mental impairment, it concluded, on the basis of Dr Milliken’s evidence, at
paragraph [24] of its decision that RM had “completed all medical psychotherapeutic
work which can be provided in hospital and that the development of specialised,
effective community provision for RM’s supervision, care and treatment in (a
residential care setting) means that currently his severe mental impairment is not of
a nature or degree requiring his detention in hospital for medical treatment. Such a
detention would not be proportionate, necessary or warranted. The Tribunal is also
satisfied that the continued detention of RM would be in breach of Article 5 of the
European Convention (on) Human Rights. It is not the least restrictive option for his
care and cannot be justified under Article 5. Accordingly, the Tribunal is satisfied
that the grounds for detention are not satisfied.”
[4] The Tribunal went on to conclude at paragraph [25] that although the
conditions for detention in hospital for treatment were not met, it would be
appropriate for RM to remain liable to be recalled to hospital for further treatment in
accordance with Article 78(1)(b) of the 1986 Order and the Tribunal then addressed
the issue of directing a conditional discharge under Article 78(2) of the 1986 Order.
At paragraph [26] the Tribunal considered the conditions to which RM would be
subject to in his community placement which were set out in a detailed proposed
community care plan. The Tribunal concluded that “Under the conditions proposed
RM would be in locked accommodation. He would not be able to leave (the
residential care setting) without being escorted and would be continually supervised
by staff when he does leave. Applying the test outlined in P v Cheshire West and
Chester Council [2014] AC 896, the Tribunal found that he would be under
continuous supervision and control and not free to leave.”
[5] At paragraph [27] the Tribunal considered the Supreme Court decision of
Secretary of State for Justice v MM [2018] UKSC 60 and concluded that “the MM case
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