Round up of mental health law cases of interest to advisers
Séan McParland, mental health legal adviser at Law Centre (NI), rounds up some Northern Ireland court cases which may be useful to lawyers advising and representing in mental health law cases. This article was first published in the Writ, journal of the Law Society of Northern Ireland, December 2015.
As set out in the Law Centre’s article in the May/June 2014 issue of the Writ, in May 2014 the Department of Health Social Services and Public Safety [DHSSPS] issued for public consultation its draft Mental Capacity Bill. One of the main purposes of the new Bill will be to repeal the Mental Health (NI) Order 1986 [the Order] in respect of adults. It is proposed that those who are 16 years and under will continue to be subject to a heavily amended Order.
However, the new Act is not expected to be in force until April 2017. So we will have the current Order for some time yet.
In this article, I wish to point out to practitioners several NI court cases, of which they may not be aware, but which we feel may be of some importance in the conduct of present mental health law cases.
Is containment in operation?
Whilst the case to which I shall refer dates from 2008, the issue of patients/clients remaining in hospital, apparently because there are not sufficient facilities in the community, is still a concern to which we should be alive. The judicial review case of X  NIQB 22, was a challenge to a decision by the Mental Health Review Tribunal [the Tribunal]. Mr Justice Gillen emphasised that the legally correct reasons for continuing to detain someone under Part II of the Order are that s/he has a mental illness or severe mental impairment of a nature or degree which warrants her/his detention for medical treatment in hospital, and that failure to detain would create a substantial likelihood of serious physical harm to her/himself or to other persons.
Gillen J held that an excessive amount of the Tribunal’s written reasons was taken up with consideration of the inadequacy of community facilities; such that he concluded it played too big a part in the decision to continue detention. In quashing the Tribunal’s decision, I think the judge expressed the position very succinctly at the ends of his paragraphs 23 and 25.
“  …..A lack of community accommodation cannot be used to justify continued detention under the terms of the Order. That is not sufficient to satisfy the initial criteria in Article 77(1).”
“ …..It is important to appreciate that treatment must not become mere containment until appropriate accommodation is available however close in the near future that may be.”
This case will be useful when one has a client who has been in hospital for some time, or maybe does not have a fixed residence to return to.
Nearest Relative can be displaced by the patient
At Article 36 of the Order, an application can be made to the County Court to displace the appointed Nearest Relative, if one or more of four specified grounds exist. The Order states the applicant can be almost anyone, except the patient her/himself. Our Order mirrors closely the English Mental Health Act 1983. Their relevant section was deemed to be incompatible with Article 8 of the European Convention on Human Rights [the Convention]in the case of JT v UK 26494/95 (2000) ECHR 133.
The matter was rectified in 2007 in England/Wales, wherein the patient could make an application of her/his own volition. The matter remained unresolved in respect of our own Order until the case of HM (judicial review)  NIQB 43. Judgment was delivered by Treacy J on 4 April this year. In light of its obligations under section 6 of the Human Rights Act 1998 to interpret legislation compatibly with the Convention, the Court read into the existing 1986 Order that Article 36 (2) can include the patient as an applicant, and that Article 36 (3) does include ‘not suitable’ as an additional (fifth) ground for displacement.
This case is progressive from a rights perspective. Detained clients are not able to choose their nearest relative, but now they can have a measure of influence by having the ability to apply to displace them. They will of course need to adduce evidence to ground the assertion that the nearest relative is not suitable.
Detention criteria clarified
The Judicial Review case of JR45 v Mental Health Review Tribunal  NIQB 17 brought clarity to the phrase in the Order ‘substantial likelihood of serious physical harm’, which is at the very core of the legal grounds required to justify detention.
During the course of his judgment McCloskey J made some very important points, including:
- “… I conclude that the expression “a substantial likelihood” in Article 77(1) of the 1986 Order connotes a real probability. “ (para. 13)
- “ The violence or apprehended harm belonging to the past [and as regards the future] must be physical in nature.” (para. 14 (a))
- “ The apprehended physical harm as regards both the past and, by prediction, the future must be serious in nature: I construe this as harm which is more than trivial or minor.” (para.14 (c))
- “ Psychological harm or a state of mental anxiety or foreboding or a feeling of harassment on the part of a third party – as regards both the past and the future, as predicted - will not suffice.” (para.14 (d))
- “ The evidence relating to the patient’s past conduct must establish not only that this engendered a fear of serious physical harm to some third party but that such fear was reasonable. In my view, this imports an objective element, which is designed to protect the patient from unfounded, irrational or ill motivated assertions of fear by some third party.” (para. 14 (e) – in reference to Article 2(4)(b)(ii) of the Order)
- “ The sixth paragraph of the decision records that XY was afraid. This is insufficient to satisfy the statutory requirement. “ (para. 28 (a))
- Substantial likelihood, as a qualitative phrase, refers to ‘serious physical harm’, not to any other event such as not complying with medication, making contact with a person, or a deterioration in mental state. (addressed in para. 28 (d))
- If the Trust adduces evidence that persons were placed in reasonable fear, then the individuals should be identified with a degree of clarity. (addressed in para. 28 (j))
The above pronouncements should be in consideration when representing a client at a tribunal. They are very useful in testing the evidence put forward by the detaining authority.
Two judicial review cases have brought the operation of the guardianship regime before the attention of the court. The first was JR50  NIQB 43. The brief facts are that the family of a severely physically and mentally disabled man was in disagreement with his healthcare providers as to the best way to manage his care and wellbeing; across a range of issues. It was argued before Treacy J that the Trust imposed guardianship under Article 18 of the Order in an effort to declare itself the ultimate decision maker as regards JR50.
At para. 19 of his judgment, the judge held thus;
” …. In effect, in the circumstances of this case, the Trust took on guardianship powers to give itself a determinative role in a dispute with a private family and clothe itself with powers which it alleged vested it with sufficient authority to defeat the family’s interest. It is quite clear that this is not what guardianship is for and that the Trust was wrong in seeking to use guardianship for this purpose.”
Practitioners may come across similar scenarios in community care type cases. The court was of the view at para. 21 that where there is a dispute about the management of a vulnerable person, which has proved incapable of resolution by mediation or other means, then the matter should be referred to the High Court for its guidance.
The second case involved the operation of guardianship, and in particular, what powers, if any, a guardian (normally a Trust) has to stop a person leaving the appointed residence for temporary reasons such as visiting a girlfriend or going to the shops/cinema. JMCA  NICA 37 reached the Court of Appeal on 12 May 2014, and Morgan LCJ gave the decision of the court. The case was dismissed, with costs to the appellant, in line with the Salem principle. This was due to the fact that at the date of hearing the appellant was not subject to guardianship, and there was no longer any issue between the parties as to the applicable law.
However the Lord Chief Justice did say at para. 8 of a brief judgment;
“ In respect of any arrangements concerning the entitlement of the appellant to leave his place of residence for incidental social purposes, the learned trial judge correctly recognised that the guardianship arrangement was based upon consensus and cooperation. We wish to make it clear that such an order does not provide any legal power to impose restrictions on such activities.”
Of course a person subject to guardianship, (or even a person who is not subject to any order, but is resident in a staffed home), can enter into an consensual agreement for arrangements to cater for how s/he comes and goes. But if a case comes before a practitioner, care must be taken to ensure that the person has relevant capacity, is having her/his wishes and autonomy respected, and is giving truly genuine fully informed consent. If not, then any restrictions imposed upon her/him could be amenable to legal challenge.
I have mentioned only some of the recent cases relevant to the field of mental health law in Northern Ireland. Each judgment is worthy of reading in full.
The 1986 order (and its guidance document) has its origins in the 1961 Act. Arguably it does fall short of contemporary rights values in some respects (as can be seen above). Given that, and the fact that it is the current applicable law, it is incumbent upon us to continue to hold its operation up to inspection, in the legal interests of our clients who are subject to its compulsory provisions.
Legal rights of people detained under mental health laws
The Law Centre has published Your Legal Rights in Hospital, a booklet for people who are detained under mental health legislation.
Copies are available on our website: http://www.lawcentreni.org/Publications/Your-legal-rights-in-hospital.pdf