Major v Kirishana
A Health and Social Care Trust v JU  NIFam 12 provides an interesting take on the extent of positive obligations under Article 2 ECHR owed in the context of mental ill-health. Importantly, and by contrast with the majority of the cases in which this issue been examined, the question was asked in real time, rather than after the event.
The case arose in relation to a woman in her early seventies, who lived in a private residential nursing home in a rural setting. She was married but estranged from her husband. She had two children and had contact with them on an occasional basis. She suffered from long-standing mental health problems and has diagnoses (which she contested) of persistent delusional disorder, emotionally unstable personality traits and recurrent depressive disorder. She had had number of hospital admissions, including under the compulsory provisions of the Mental Health (Northern Ireland) Order 1986 (‘MHO’). She was now subject to a guardianship order under the MHO.
The Health and Social Trust responsible for her made an application under the inherent jurisdiction for orders – including authority to deprive JU of her liberty, because it considered that it might require powers to ensure her safe management should her condition deteriorate. The application was made under the inherent jurisdiction because it was agreed that JU currently had capacity (precisely as to what was not set out in the judgment), such that the deprivation of liberty provisions under the Mental Capacity Act (Northern Ireland) could not currently apply to her.
Helpfully, especially for those not familiar with the legislative landscape in Northern Ireland, McFarland J summarised JU’s situation and the framework relating to it thus (all references to ‘Art’ being to Articles in the MHO):
29. […] She is subject to a guardianship order because it has been determined that she is suffering from a mental illness or severe mental handicap of a nature and degree which warrants her reception into guardianship. It has also been determined as being necessary in the interests of her welfare (Art. 12(2)).
30. Under the terms of the guardianship order JU is required to reside at the nursing home. Should she absent herself from the nursing home without the leave of her guardian, a police officer, a social worker or any other person duly authorised by the guardian, or the Trust has the power, without warrant, to detain JU and to return her to the nursing home (Art. 29(2)).
31. JU does not at present satisfy the detention provisions for either an assessment order or a hospital order (see Art. 4 and Art. 12) which require evidence of a substantial likelihood of serious physical harm either to her or to another person. The diagnostic test for an assessment order is that she is suffering from a mental disorder of a nature or degree which warrants her detention in a hospital for assessment. The diagnostic test for a hospital order is that the patient is suffering from a mental illness or severe mental impairment of a nature or degree which warrants her detention in hospital for medical treatment.
32. Should JU’s condition deteriorate, and it is considered that she does satisfy the conditions for the making of an assessment order, on the making of an application, the Trust has the power to take and convey JU to a hospital (Art. 8(1)) and to detain her in the hospital (Art. 8(2)(a)). If she was already an in patient at a hospital, any application gives the Trust the power to detain her (Art. 7A).
33. The DOL provisions in the MCA can not apply to her because she is capacitous, however should JU lose her capacity, power is vested in the Trust to take emergency steps to apply DOL provisions (section 65).
The Trust’s case was that, should JU’s condition deteriorate, it was powerless to act to secure her well-being and to fulfil its Article 2 ECHR positive obligations towards her. As McFarland J identified at paragraph 35, this gave rise to the following questions:
a) Does the Trust owe an operational Article 2 ECHR duty of care to JU?;
(b) If so, is that duty currently engaged?;
(c) If not currently engaged, in the event of deterioration in JU’s mental health and the duty becomes engaged, are the existing statutory powers sufficient for the Trust to take lawful steps to fulfil its duty?;
(d) If the existing statutory powers are insufficient, is the inherent jurisdiction of the court available to permit the deprivation of the liberty of JU?;
(e) If they are available, should the court exercise its discretion and grant the Trust, and others, the powers the Trust seeks, and on what terms?
In relation to the first of these, McFarland J identified at paragraph 36 that it exposed what he considered to be a fundamental, if not fatal, flaw in the Trust’s argument:
Its case is that the operational Article 2 ECHR duty applies and as it cannot lawfully exercise control over JU, it needs extra-statutory powers from the court. The case-law however suggests that the state’s operational Article 2 ECHR duty only arises to citizens over whom the state exercises control.
The case-law referred by McFarland J included the Supreme Court decisions in Rabone v Pennine Care  UKSC 2 (upon which the Trust placed reliance) and Maguire  UKSC 20 (which McFarland J identified as more relevant to the interface between Article 2 and medical negligence), and, in particular, Oliveira v Portugal  69 EHRR 8. He also referred to the English Court of Appeal decision in Morahan  EWHC 1603.
Contrary to the position advanced by the Trust, McFarland J found (at paragraph 51) that it – and the guardian exercising powers under the guardianship order – did exercise control over JU, such that it owed an operational duty towards her. However, it is perhaps more accurate to say that he found that they owed an ‘in principle’ duty towards her, because in the next section he considered whether the operational duty was, in fact, currently engaged, requiring him to look at factors set out in the Oliveira case:
52 […] There is clearly a history of mental health problems. At times these problems have presented as being grave, but currently they are under control. There have been previous attempts at self-harm including drug over-doses and a significant incident of attempted suicide in 2017. There is no evidence of any current suicidal thoughts or threats. Occasionally JU presents in a heightened state of distress but there is no evidence to suggest that this cannot be managed within the nursing home and by its staff. The only significant factor is the suicide attempt [in 2017], however because of the vintage of that event, the fact that it has not been repeated, the successful response by JU to medical intervention to date, and her current presentation within the setting of the nursing home where she now resides, the level of the duty has to be regarded as being at a relatively modest level. To use the popular phase, there are no current ’red flags’ in this case.
53. In the circumstances the evidence suggests that the operational Article 2 ECHR duty is not currently engaged.
54. JU’s mood and condition may fluctuate from time to time, as will often be the case with people with mental health problems, but there is nothing to suggest any particular problem at this moment. All the evidence suggests that the staff within the nursing home are well able to identify and cope with any heightened displays of anxiety by JU and, again, there is nothing to suggest that the nursing home staff are not able to cope with any peaks and troughs in JU’s presentation based on the history of her period of residence in the nursing home.
Turning, then to the question of whether the Trust had adequate powers to fulfil its Article 2 operational duty if JU’s condition deteriorated, McFarland J noted (at paragraph 57) “the problem of leaving of such decision making powers as to the diagnosis of a deterioration in JU’s mental condition to non medically qualified staff and then vesting the exercise of powers of DOL in the hands of non state actors, ie the nursing home staff.” More fundamentally, McFarland J did not consider that the powers of “significant and constant” monitoring of JU sought by the Trust were required because, whilst nursing home staff could not under the provisions of the guardianship order stop her leaving, “once she stepped over the threshold of the premises and did so without leave, she would be subject to detention and return” (paragraph 61). He also considered that, given the asserted opinion of the psychiatrist upon whose evidence the Trust relied as to “the substantial likelihood of harm, and the already confirmed diagnoses of her mental health conditions, it is difficult to come to a conclusion that she could not be subject at the very least to an assessment order, if not a hospital order, even at this time and without any deterioration” (paragraph 63). Finally, McFarland J noted that “[t]he DOL provisions in the MCA would also be available in any emergency (see sections 24 and 65). Section 65 (5) would allow a person without expertise (ie a nursing home employee) to act in an emergency based on their reasonable belief that it was necessary to deprive JU of her liberty without delay, on the basis that she lacked capacity and to prevent harm to JU” (paragraph 64).
In light of his conclusions, it was not strictly necessary for McFarland J to determine whether the inherent jurisdiction of the (Northern Ireland) High Court was available and, if it were to be, whether it should be exercised. Starting with the first question, he reminded himself it was necessary to show that there was a gap in any legislative scheme before the court can invoke its inherent jurisdiction. Whilst the failure to commence the MCA (NI) 2016 in full meant that certain legislative provisions were not available, McFarland J considered that it was “difficult to actually itemise any gaps in the legislation when it comes to imposing DOL on capacitous adults”(paragraph 71), continuing – after a review of the Strasbourg case-law that:
74. With the necessity for the strict interpretation of Article 5(1)(e) ECHR and the narrow interpretation of “person of unsound mind”, I would conclude that the legislative provisions in the MHO and the MCA are adequate and do not have any gaps that need to be filled by the inherent power. There are powers to detain, assess and treat within the MHO. The provisions are compliant with Article 5(1)(e). The MHO powers allow for an immediate response in the event of a sudden deterioration. Similarly, although a capacitous person cannot be subject to a DOL, should they lose their capacity, then there are powers available under the MCA to put in place appropriate DOL orders. Both the MHO and the MCA provide for permissible steps to be taken in an emergency.
And, having reviewed the line of English cases concerning the use of the inherent jurisdiction in relation to capacitous adults, he summarised them thus:
83. The theme emerging from this recent line of authority is not a new one but reflects a caution which the courts have always held against any form of interference in the liberty of a citizen. If the citizen lacks capacity either because of their age or their medical condition, then the court will act, as required, to protect their well being. If, however, they do not lack capacity, it is not the role of the court to interfere with the liberty of a citizen, albeit for the best of motives. The deprivation of the liberty of a capacitous adult is a matter for the legislature subject to the compatibility provisions of the Human Rights Act 1998.
McFarland J, it appears, would have followed this line of thinking, making clear in his conclusion at paragraph 89 that, even if there were gaps in the legislation allowing the court to exercise its inherent jurisdiction, the “court could not restrict the liberty of JU so long as she retained her capacity.”
Before he reached his conclusion, however, McFarland J had made the following observations about Article 8, noting that:
85. This case does raise important issues, not least for JU but also the guardian and for the Trust, but the starting point must be that JU does not lack capacity. The concern in this case is that JU may, at some time in the future, take steps to end her life. The law in this country recognises that people who have capacity can exercise that capacity by making decisions to end their own life. They can do so by refusing medical treatment or they can do so by taking active steps to bring about their death. This has been recognised by the ECtHR in Haas v Switzerland  ECHR 2422 in the following terms:
“An individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.”
86. In Hiller the ECtHR made specific reference to The Council of Europe’s Recommendation (Rec (2004) 10) concerning the human rights and dignity of persons with mental disorder, Principle 9.1 of the UN General Assembly’s resolution (17 December 1991) – “Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others”, and the UN’s convention on the rights of persons with disabilities (13 December 2006).
87. The ECtHR at  and  concluded that there had been no disregard by Austria of its Article 2 ECHR obligations because it was necessary to scale back any DOL without delay when the patient’s medication started to work, and he was compliant with the hospital rules because the advantages of an open hospitalisation clearly outweighed the disadvantages of a closed option. Ultimately it was decided that had the patient’s liberty been restricted more than it had been, then this would have raised issues not only under Articles 3 (prohibition of torture and inhuman treatment), Article 5 and Article 8 ECHR.
In light of this authority, McFarland J noted:
88. There is a strong argument to suggest that granting these powers to the Trust when JU is not only capacitous, but also receiving and taking appropriate medication, and is both settled and compliant within the nursing home and capable of carrying on her life with appropriate social interaction with staff, fellow residents and the wider community, would be hard to justify under Article 8 ECHR as a proportionate response.
The judgment was delivered in the Northern Ireland context, such that its specific conclusions need to be read against that context. For instance, the emergency provisions of the MCA (NI) that McFarland J relied upon to find that there was no legislative gap do not have any equivalent in the MCA (E&W), and are not likely to for the foreseeable future given that the amendments proposed to s.4B in the Mental Capacity (Amendment) Act 2019 are not being brought into force.
But the observations about the ECHR are ones that might be thought to have a wider resonance. In relation to Article 2, it is not quite correct to say, as McFarland J did, that operational obligations under Article 2 arise only in relation to those over whom the State exercises control. The obligation under Article 2 to ‘take appropriate steps to safeguard the lives of those within its jurisdiction’ arises in a range of different circumstances, helpfully summarised at paragraphs 11 to 67 of the guide to Article 2 produced by the staff of the ECtHR. It is, however, undoubtedly true that, in the context of self-harm and suicide risk, the question of the control being exercised by the State is particularly significant – even, as then identified by McFarland J – reference may then have to be made to both Articles 5 and 8 in terms of seeking to determine the correct course of action.
Above all, perhaps, it is of importance that it is infinitely better that these difficult questions are tackled, where necessary by way of court application, whilst there are still steps that might be taken, rather than applying the ‘retrospectoscope’ after a person has died to identify all the possible points at which something different might have been done.