A Health and Social Care Trust v X et al

Summary

Mr X had died by the time of this judgment, but the decision is likely to affect hundreds of individuals in Northern Ireland in similar circumstances.  The case concerned a man lacking capacity around his care arrangements who was confined to a care home. The exit doors were secured at all times. He had freedom of movement within the home but not beyond it. Activities were provided for him to join in such as planned trips, visits to an "open unit" within the same home and access to the secure garden area. During almost all of these activities he was escorted.

The Trust applied for a guardianship order and the issue was whether this covered Mr X's deprivation of liberty. For these purposes, the guardian's powers under Article 18 of the Mental Health NI Order 1986 are not dissimilar to those in England and Wales. Only the Attorney General submitted that it was unnecessary to get authorisation to deprive liberty under the inherent jurisdiction of the High Court on the basis that guardianship could be interpreted to cover it. The other parties agreed such an authorisation was necessary.

O'Hara J held:

32. Put simply, there is no authority for reading the guardianship provisions in the manner proposed by the Attorney General. It is more than regrettable that there is still a significant gap in our legislation but that is not a reason to interpret it in the manner suggested.

Pending the coming into force of the Mental Capacity Act (Northern Ireland) 2016, authorisations would therefore be required from the High Court. And the guidance in Re X was broadly supported. Equivalent guidance was therefore needed because "very few of these applications are in any way controversial – but they still have to be made and adjudicated upon until some other statutory procedure is put in place" (para 37). Moreover:

37. The obvious solution is to give responsibility to the Mental Health Review Tribunal which is unquestionably the body with all of the necessary skills and experience to fill this role. Whether it is the High Court or the Tribunal, additional resources will be required because the consequence of Cheshire West is to require legal sanction for what were previously regarded simply as benign arrangements.

Unlike the Re X procedure in England and Wales, in every new case an oral hearing is conducted (para 39) but reviews typically 12 months or so later are conducted initially as a paper exercise: "Consideration might be given to longer periods of renewal where it is entirely clear that there will not be any improvement but a review has to be scheduled for some point in the future. The liberty to apply provision allows the patient's rights to be raised and considered at any time if there is a change in circumstances" (para 39). Given that the guardianship process already provided a statutory requirement to consult with the nearest relative, the Re X consultation requirements were already achieved, although the views of others interested in the person's welfare could be captured in the social work report (para 41).

Comment

This case illustrates the impact of the Cheshire West decision in Northern Ireland. Requiring the High Court to authorise deprivations of liberty outside a hospital setting (including in care homes) provides a stark warning of the urgency of the need to implement the liberty deprivation procedure in the 2016 Act – which, subsequent to this decision – have now been announced as coming into force on 1 October 2019.