HM’s Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 04 April 2014 |
| Neutral Citation | [2014] NIQB 43 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | QBD; TRE9233 |
| Date | 04 April 2014 |
1
Neutral Citation No [2014] NIQB 43
Ref:
TRE9233
Judgment: approved by the Court for handing down
Delivered:
04/04/2014
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
HM’s Application [2014] NIQB 43
AN APPLICATION BY HM FOR JUDICIAL REVIEW
AND
IN THE MATTER OF ARTICLES 32 AND 36 OF THE MENTAL HEALTH
(NORTHERN IRELAND) ORDER 1986
________
TREACY J
Introduction
[1] This is a challenge to Articles 32 and 36 of the Mental Health (Northern Ireland)
Order 1986 (“the 1986 Order”).
[2] Articles 32 and 36 deal with the nearest relative scheme in that order, specifically,
Article 32 defines the term and Article 36 deals with the circumstances in which the
County Court can appoint an alternative person to act in the capacity of the nearest
relative. The Applicant complains that his Article 8 rights are interfered with because
the order makes no provision for him, as patient, to apply to change his nearest relative.
Order 53 Statement
[3] The applicant sought the following relief:
(a) A declaration that Articles 32 and 36 of the Mental
Health (Northern Ireland) Order 1986 are to be interpreted in
a manner that does not contravene the applicant’s rights
2
under Articles 5 and 8 of the European Convention on
Human Rights.
(b) Further or in the alternative an order of certiorari to
bring up to this Honourable Court and quash Articles 32 and
36 of the Mental Health (Northern Ireland) Order 1986.
(c) Further or in the alternative a declaration that Articles
32 and 36 of the Mental Health (Northern Ireland) Order
1986 are unlawful, ultra vires and of no force or effect.
(d) An order of mandamus compelling the Department of
Health and Public Safety to forthwith put in place amending
legislation to remove and amend those parts of Articles 32
and 36 of the Mental Health (Northern Ireland) Order 1986
which are unlawful and/or in breach of the applicant’s
Convention rights under Articles 5 and 8.
[4] The grounds upon which the relief was sought included:
(a) Articles 32 and 36 are necessarily inconsistent with,
and in violation of, the rights of the applicant under Articles
5 and 8 of the European Convention on Human Rights by
virtue of representing infringements of those rights which
are neither proportionate nor necessary in a democratic
society and are accordingly in breach of Section 3 of the
Human Rights Act 1998.
Factual Background
[5] The applicant is a 34 year old man who is currently a detained patient pursuant
to Article 12 of the 1986 Order. He is under the care of the Northern Health and Social
Care Trust (“the Trust”).
[6] The applicant’s current admission commenced on 15 March 2013 when he was
detained by the Trust pursuant to Article 4 of the 1986 Order. Following his detention
for assessment the trust detained the applicant for treatment pursuant to Article 12 of
that Order. During the assessment for detention on 15 March 2013 the approved social
worker was unable to determine, within the meaning of Article 32 of the 1986 Order,
who the applicant’s nearest relative was. It was later ascertained that the relevant
nearest relative was his mother.
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2 cases
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Michael O'Donnell v Department for Communities
...that it is not possible to “go against the grain” of the legislation in question, see also Gilham at paragraph [39]. In HM’s Application [2014] NIQB 43 at paragraph [51] in a passage with which we agree Treacy J after reviewing the authorities stated “…the limits of the interpretive Section......
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A Health and Social Care Trust v Mr X and Mrs Y
...invited to interpret the 1986 Order by reference to Section 3 of the Human Rights Act. He referred to a later judgment of Treacy J in HM [2014] NIQB 43 as illustrating the way which the Human Rights Act can be used to interpret the 1986 Order in a manner which was not originally envisaged. ......