X [Hc (Ni)]
| Jurisdiction | Northern Ireland |
| Judgment Date | 20 February 2008 |
| Date | 20 February 2008 |
| Court | High Court (Northern Ireland) |
[2008] NIQB 22
Court: High Court, Northern Ireland
Gillen J
Whether a Tribunal decision not to release a patient should be quashed for applying the wrong test; the adequacy of the reasons.
X was detained under the Mental Health (Northern Ireland) Order 1986. Article 77 of the Order requires the Mental Health Review Tribunal for Northern Ireland to release a patient if it is not satisfied that the criteria for detention are made out, including the question of whether discharge would create a substantial likelihood of serious physical harm to himself or to other persons. By virtue of Art 2(4) of the Order, the test of "substantial risk of serious harm" requires that, in relation to self-harm, regard be had only to evidence of the patient's serious harm to himself (or attempts or threats) or his inability to protect himself against serious physical harm and the availability of reasonable provision in the community; in relation to harm to others, regard shall be had only to evidence of violent behaviour or behaviour that placed others in reasonable fear of serious physical harm.
X's detention was upheld by the Mental Health Review Tribunal for Northern Ireland. In its reasons, the Tribunal analysed the lack of suitable alternative accommodation in the community to meet his needs and noted that there was general agreement that his condition had not changed materially in the past year and that he was involved in aggressive incidents every few days. Its decision was challenged in judicial review proceedings on the basis that it did not apply the correct legislative test, that the evidence did not justify any conclusion that the test was met, and that it had been improperly influenced by the lack of community resources. In an affidavit produced for the proceedings, the President of the Tribunal referred to various matters taken into account by the Tribunal that were not mentioned in the reasons, including the placement of X on a locked ward, where staff were adept at early interventions to avoid violence, unsuccessful attempts to accommodate him on unlocked wards and evidence that he would not cooperate with community resources.
Introduction
[1] The applicant has been detained since May 2002 under the Mental Health (Northern Ireland) Order 1986 as amended (hereinafter called "the Order"). The application challenges the decision of the Mental Health Review Tribunal for Northern Ireland ("the Tribunal" or "the Respondent") of 21 August 2007 refusing the applicant's application for discharge pursuant to Art 77(1) of the Order.
[2] The grounds upon which leave have been granted are in essence that the Tribunal failed to apply the correct legislative tests pursuant to Art 77 of the Order, that there was insufficient evidence to enable the Tribunal lawfully to determine that the detention satisfied the legal criteria in Art 77 of the Order and that the Tribunal was wrongly influenced by the unavailability of community resources to facilitate the applicant's discharge. In addition the applicant submits that the Tribunal failed to meet the requirements of Reg 23(2) of the Mental Health Review Tribunal Regulations (Northern Ireland) 1986 ("the Regulations") in that it failed to adequately explain its findings or set out its reasons pursuant to the criteria in Art 77 of the 1986 Order.
Statutory framework
[3] Where relevant, Art 77(1) of the Order as amended by the Mental Health (Amendment) (Northern Ireland) Order 2004reads as follows:
"(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 is 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 Art 71(4)(a) in respect of a report furnished under Art 14(4)(b), the Tribunal is satisfied that he would, if discharged, receive proper care."
[4] When interpreting and applying Art 77 of the Order, the Tribunal must take account of Art 2(4) of the Order which provides as follows:
"(4) In determining for the purposes of this Order whether the failure to detain a patient or the discharge of a patient would create a substantial likelihood of serious physical harm -
(a) to himself, regards shall be had only to evidence -
(i) that the patient has inflicted, or threatened or attempted to inflict, serious physical harm on himself; or
(ii) that the patient's judgment is so affected that he is, or would soon be, unable to protect himself against serious physical harm and that reasonable provision for his protection is not available in the community;
(b) to other persons, regards shall be had only to evidence -
(i) that the patient has behaved violently towards other persons; or
(ii) that the patient has so behaved himself that other persons were placed in reasonable fear of serious physical harm to themselves."
[5] Where relevant the provisions of Reg 23(2) of the 1986 Regulations provides as follows.
"The decision by which the Tribunal determines an application shall be recorded in writing by the Tribunal, the records shall be signed by the President and shall give the reasons for the decision and in particular where the Tribunal relies upon any of the matters set out in Art 77(1) of the Order, shall state its reasons for being satisfied as to the those matters."
Principles Governing My Conclusions
[6] Amongst the salient principles governing my conclusions in this case are the following. The burden of proof in this matter to detain the applicant clearly falls on the party seeking to justify detention. The onus of proof is to establish in the first place the appropriate diagnosis of mental illness or impairment, secondly that the condition warranted medical treatment in hospital and thirdly that the applicant's discharge would create a substantial risk of serious physical harm to himself or other persons. In the wake of the Court of Appeal decision in England of R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1, [2001] Mental Health Law Reports 48, which found a burden of proof on the patient was incompatible with Art 5 of the European Convention for...
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