JR276's (A Patient) Application and In the matter of decisions of Muckamore Abbey Hospital Enquiry and the Belfast Health and Social Care Trust
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] NIKB 107 |
| Date | 15 November 2023 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 107
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SCO12327
ICOS No: 23/051330/01
Delivered: 15/11/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
KING’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY JR276 (A PATIENT)
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE MUCKAMORE ABBEY HOSPITAL INQUIRY
AND THE BELFAST HEALTH AND SOCIAL CARE TRUST
___________
Ronan Lavery KC and Colm Fegan (instructed by McIvor Farrell, Solicitors) for the
applicant, ‘JR276’
Donal Sayers KC and Denise Kiley (instructed by the Solicitor to the Inquiry) for the first
respondent, the Muckamore Abbey Hospital Inquiry
Joseph Aiken KC and Laura King (instructed by the BSO Directorate of Legal Services)
for the second respondent, the Belfast Health and Social Care Trust
Brenda Campbell KC and Sean Mullan (instructed by Phoenix Law) for ‘NP1’
Monye Anyadike-Danes KC and Aidan McGowan (instructed by Phoenix Law) for ‘NP2’
Conor Maguire KC and Victoria Ross (instructed by O’Reilly Stewart, Solicitors) for ‘NP3’
___________
SCOFFIELD J
Introduction
[1] The applicant, who is known in these proceedings as ‘JR276’ in order to
preserve his anonymity, is a patient of Muckamore Abbey Hospital (“Muckamore”)
and acts by his mother as next friend. By these proceedings he seeks to challenge the
process by which the Muckamore Abbey Hospital Inquiry (MAHI) (“the Inquiry”)
has requested and proposes to obtain medical notes and records relating to him,
which would otherwise be confidential, for the purposes of its work. The applicant
also challenges the approach of the Belfast Health and Social Care Trust (“the Trust”)
in respect of this matter; although it is fair to say that the primary target of the
challenge is the Inquiry.
[2] There are three notice parties who have been given permission to participate
in these proceedings – known respectively as ‘NP1’, ‘NP2’ and ‘NP3’ – who are
Muckamore patients or former patients, or relatives of such patients, and also core
participants in the Inquiry. They too have been granted anonymity in light of the
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relevant patient’s lack of capacity and some of the details in relation to their medical
conditions and care which are contained in the evidence. The notice parties
essentially support the applicant’s challenge. NP1 is within Core Group 2 of the core
participants before the Inquiry, which is affiliated to an organisation called the
Society of Parents and Friends of Muckamore (SPFM). He was an in-patient in
Muckamore for some 35 years, until very recently. He lacks capacity and acts by his
sister and next friend. NP2 is within Core Group 1 of the core participants, affiliated
to an organisation called Action for Muckamore (AFM). He lacks capacity and acts
by his father and next friend, who I have been told was instrumental in pressing for
the Inquiry to be set up. NP3 is within Core Group 3, who are core participants not
affiliated to either Group 1 or Group 2. She is the mother of a former patient
detained in Muckamore, who has now sadly passed away.
[3] The applicant’s representatives have described the primary question to be
determined in these proceedings as whether it is lawful for the applicant’s medical
notes and records to be requested by the Inquiry, and in turn be provided to it by the
Trust, without the applicant’s knowledge, consent or involvement at any stage of
that process.
[4] Mr Lavery KC appeared with Mr Fegan for the applicant; Mr Sayers KC
appeared with Ms Kiley for the Inquiry; Mr Aiken KC appeared with Ms King for the
Trust; Ms Campbell KC appeared with Mr Mullan for NP1; Ms Anyadike-Danes KC
appeared with Mr McGowan for NP2; and Mr Maguire KC appeared with Ms Ross
for NP3. I am grateful to all counsel for their helpful written and oral submissions.
Factual background
[5] The issues raised by these proceedings are largely questions of law.
Nonetheless, it will be helpful to set out a brief summary of the factual context which
has given rise to the present dispute. The applicant is now 31 years old. He has been
an in-patient within the Six Mile Ward at Muckamore for over a decade. That ward
is a secure unit which provides care and treatment to male patients with a learning
disability who have mental health difficulties and who have had previous contact
with forensic services. For his part, the applicant has diagnoses of Severe Learning
Disability, Epilepsy, Autism and ADHD; and is described as having Emotionally
Unstable Personality Disorder. His conditions have given rise to a severe
impairment of his intelligence and to complex behavioural needs. The applicant’s
mother has ‘core participant’ status in the Inquiry. She provided a written witness
statement to the Inquiry in October 2022 and gave oral evidence to it shortly
afterwards about the applicant’s experience and treatment in Muckamore. The
applicant’s father (the ex-husband of his mother and next friend) also has core
participant status and made a statement to the Inquiry in September 2022. He also
gave oral evidence shortly afterwards.
[6] The Inquiry is a statutory inquiry established under the Inquiries Act 2005
(“the 2005 Act”). Its Terms of Reference indicate that its core objectives include
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examining the abuse of patients at Muckamore and determining why the abuse
happened and the range of circumstances which allowed it to happen.
[7] An important feature of the context of this challenge is a decision given by the
Chair of the Inquiry, Mr Tom Kark KC, which was published on 5 June 2023. It was
entitled, ‘Determination Relating to Section 21 and Section 22 Inquiries Act 2005 With
Reference to the Patient Document Requests Made to the BHSCT’ (“the Chair’s PDR
Ruling”). The written ruling arose out of concerns expressed by the Trust about the
legality of its complying with notices issued to it by the Inquiry requiring the
production of patients’ notes and records. Such notices have come to be referred to
as patient document requests (PDRs). They were issued by the Inquiry pursuant to
[8] The notices in question required the Trust to provide specific patients’ medical
notes and records to the Inquiry. The Inquiry’s practice has been to make what it
calls “targeted requests” for such records, that is to say by seeking limited parts of
those records which appear to it to be relevant to its work rather than seeking
provision of the entirety of the patient’s notes and records. The PDRs are not
requests to produce all documents held by the Trust relating to a patient. Rather,
some of the requests are for all documents held by the Trust relating to a patient with
reference to a specified period of time; and others are for specified documents only.
By this means, the Inquiry has sought to avoid being swamped by the provision of
unnecessary records and aims to delegate (although that word is not entirely
apposite) the sifting of those records, at least in the first instance, to the providing
body which is the record-holder and recipient of the notice. As mentioned further
below, the Inquiry has been keen to emphasise that, in proceeding in this way, it
intends to take an incremental or iterative approach. Where it judges it necessary or
appropriate, it will in due course seek further patient records relevant to its work.
[9] It seems that the Trust had previously provided excerpts of patients’ medical
notes and records to the Inquiry in this way. However, at some point the Trust
became concerned about whether it was appropriate for it to do so. This concern
turned upon whether such records may be immune from compelled disclosure by
virtue of section 22(1)(a) of the 2005 Act. The position adopted by the Trust at this
point was to invite the Inquiry to make an application to the High Court in order to
provide a sound legal basis for the provision of such records to the Inquiry. The
Chair of the Inquiry ruled on these issues in his PDR Ruling referred to above. It is
unnecessary for present purposes to set out in detail the arguments made or the full
reasoning of the Chair for rejecting them. The core of the Chair’s reasoning,
however, was as follows:
(i) That there was no bar to the provision of such records which arose under
section 22(1)(a) of the 2005 Act because the High Court could make an order in
civil proceedings requiring the disclosure of such information. The relevant
test was whether the High Court could make such an order (because it was
couched in terms of whether the recipient “could not be required” to produce
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