Magowan
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 January 2009 |
| Date | 23 January 2009 |
| Court | High Court (Northern Ireland) |
[2009] NIQB 6
Court and Reference: High Court (NI), WEA7370
Weatherup J
Whether the lack of community care provision for a detained patient breached Arts 5 or 8 ECHR or community care legislation
VM, who was born in 1984, had a severe learning disability and so very limited communication skills, and longstanding behavioural difficulties. He went to a special school until he was 18 and then attended a Day Care Centre 5 days a week until October 2005, when his father decided that he should stay at home. In April 2006, he was placed in hospital under the Mental Health (Northern Ireland) Order 1986. The Mental Health Review Tribunal for Northern Ireland, acting under Art 77 of the Order, may discharge in any case and must discharge if not satisfied that the patient has mental illness or severe mental impairment of a nature or degree warranting detention in hospital for treatment or that discharge would create a substantial likelihood of serious physical harm to the patient or others. In August 2007, the Tribunal upheld VM's detention, noting that his needs could not be met in the community. Judicial review proceedings were then commenced against the relevant health and social services trusts, alleging that there was inadequate community care provision. The trusts contended that appropriate facilities had been available only in hospital until the completion in 2008 of new residential and respite facilities: these were outside VM's home area, and he had been granted leave from hospital to stay there. The applicant contended that facilities that could allow VM to live with his parents were required. Reliance was placed on Arts 5 and 8 ECHR as well as domestic legislation.
WEATHERUP J
[1] This is an application for judicial review by Vincent Magowan (the applicant), as father and next friend of Vincent Magowan (Vincent), a patient at Muckamore Abbey Hospital, Antrim. The first respondent is the Northern Health and Social Services Trust (formerly the Causeway Health and Social Services Trust), with responsibility for the area where the family lives, and the second respondent is the Belfast Health and Social Services Trust (formerly the North and West Belfast Health and Social Services Trust), with responsibility for the area where Muckamore Abbey Hospital is situated. Ms Keegan QC and Ms Williamson-Graham appeared for the applicant, Mr Good for the first respondent and Mr Finbar Lavery for the second respondent.
[2] Vincent was born on 2 February 1984 with Downs Syndrome. He is described by Dr Maria McGinnity, Consultant Psychiatrist at Muckamore Abbey Hospital, who has been the responsible medical officer for Vincent since 16 October 2006, as having a severe learning disability with very limited communication skills and longstanding behavioural difficulties. He attended Sandleford Special School, Coleraine from the age of 9 to 18 years when he transferred to Mountfern Adult Day Care Centre, which involved a 5 day placement per week. He was a patient at Muckamore Abbey Hospital between 29 October 2004 and 4 August 2005. Thereafter he returned to Mountfern Adult Day Care Centre until October 2005, when the applicant decided that he should remain at home.
[3] On 4 April 2006 he was readmitted as a patient at Muckamore Abbey Hospital under the Mental Health (Northern Ireland) Order 1986. The 1986 Order makes provision with respect to the detention, guardianship, care and treatment of patients suffering from mental disorder and for the management of the property and affairs of such patients. Part V of the Order provides for applications to the Mental Health Review Tribunal for Northern Ireland. The Mental Health (Amendment) (Northern Ireland) Order 2004came into operation on 14 May 2004 and amended ArticleArt 77(1) as follows in relation to the power to discharge patients -
"(1) Where application is made to the Review Tribunal by or in respect of a patient who is liable to be detained under this Order, the tribunal may in any case direct that the patient be discharged, and shall so direct if --
(a) the tribunal is not satisfied that he is then suffering from mental illness or severe mental impairment or from either of those forms of mental disorder of a nature or degree which warrants his detention in hospital for medical treatment; or
(b) the tribunal is not satisfied that his discharge would create a substantial likelihood of serious physical harm to himself or to other persons; or
(c) in the case of an application by virtue of Article 71(4)(a) in respect of a report furnished under Article 14(4)(b), the tribunal is satisfied that he would, if discharged, receive proper care."
[4] Thus the Tribunal may discharge in any case and shall discharge if not satisfied on the need for hospital treatment or the requisite degree of risk from the patient. The applicant applied for Vincent to be discharged and by a decision dated 1 August 2007 the Mental Health Review Tribunal directed that Vincent should not be discharged from detention under the 1986 Order. The Tribunal was satisfied that Vincent suffered from severe mental impairment of a nature and degree that warranted his detention in hospital for medical treatment. There was stated to be clear evidence of severe impairment of intelligence and of social functioning. In addition his severe mental impairment was stated to have been associated with abnormally aggressive and seriously irresponsible conduct which included a history of verbal and physical aggression to others and destructive behaviour towards property. Here the Tribunal was referring to both the requirement for hospital treatment and the risk of harm. The Tribunal's written reasons concluded --
"It is clear from the patient's history that he responds best to an environment which stimulates him with his preferred activities, provides him with supports and boundaries and draws a consistency of response to his challenging behaviour. This environment has proved difficult to replicate while the patient has been living in the community and this has invariably led to readmissions to hospital.
The tribunal has considered all of the evidence in relation to this application and is satisfied that the environment outlined above would not be available to the patient were he to be discharged back into the community. Similarly the treatment he receives in terms of the Behavioural Management Plan would not be available in the community. The tribunal has not doubt that the absence of the above environment and treatment would bring about the behaviours which the patient...
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