Landmark case highlights ‘legal lacuna’ for release of offenders under hospital orders
A first-of-its-kind case in Northern Ireland has highlighted a “legal lacuna” in respect of the release of offenders detained under mental health legislation, lawyers have said.
Belfast-based Higgins Hollywood Deazley (HHD) Solicitors is involved in a case concerning an offender who was dealt with by means of a hospital order under Part III of the Mental Health (NI) Order 1986.
Those subject to a hospital order have their detention reviewed by an independent panel, the Mental Health Review Tribunal (MHRT), to determine when they can be released back into the community by way of absolute or conditional discharge.
However, a UK Supreme Court ruling in 2018 found that the equivalent body in England and Wales could not impose conditions amounting to detention or a deprivation of liberty upon a patient deemed suitable for conditional discharge.
The judgment in Secretary of State for Justice v MM  UKSC 60 has had an impact on the MHRT’s ability to release the law firm’s client back into the community. No legislative changes have since been made in England and Wales or in Northern Ireland.
Charlene Dempsey, solicitor advocate at HHD Solicitors, said: “In our case, the MHRT have conceded that as a result of this decision they are powerless to release our client despite concluding he ‘no longer meets the criteria for detention’.
“The net result is there is a patient currently detained in a mental health facility who simply should not be there. It was never the trial judges’ intention that this patient would be detained indefinitely.
“The law at that time ensured that his detention would be reviewed at regular intervals by an independent judicial panel in the form of the MHRT who could direct release – that is now not the case.”
This case is currently before the High Court’s Family Division in Northern Ireland.