About this case:

• Citation:
  [2022] NICA 35
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mr Justice McAlinden

The court granted the appeal against a decision of Mr Justice Adrian Colton, where it was found that there had been too much reliance on English legislation which differed from the framework in Northern Ireland.

Background

The applicant, RM, suffered from severe mental impairment, and had a history of engagement with mental health services. In March 2018 he was sentenced for a series of offences including indecent assaults of females and males, gross indecencies with or towards a child, sexual assault of a child under 13 and threats to kill.

Having been found unfit to plead to the charges, the Crown Court imposed a hospital order subject to special restrictions and without limitation of time. Pursuant to Article 46 of the Mental Health (Northern Ireland) Order 1986, he was admitted to and detained at Muckamore Abbey Hospital.

In January 2019 he made an application to a Review Tribunal appointed under Article 78 of the 1986 Order, seeking his discharge from detention. A hearing took place in June 2020.

The tribunal found that RM had “completed all medical psychotherapeutic work which can be provided in hospital and […] his severe mental impairment is not of a nature or degree requiring his detention in hospital for medical treatment”.

They outlined a possible plan for his return to the community, with care and treatment being moved to a residential care setting. They believed that any further detention in the hospital may amount to a breach of his Article 5 ECHR rights.

The Tribunal concluded: “Under the conditions proposed RM would be in locked accommodation. He would not be able to leave (the residential care setting) without being escorted and would be continually supervised by staff when he does leave.”

However, this system would amount to a conditional discharge, whereby the patient may be required to return to hospital detention for further treatment. The Tribunal noted the recent Supreme Court decision of Secretary of State for Justice v MM [2018] UKSC 60, which clarified that a deprivation of liberty cannot be imposed as a condition of conditional discharge. Baroness Hale noted in that decision:

In essence, the degree of supervision from hospital professions, whilst the appellant was placed in the community, was deemed sufficient to constitute hospital treatment, therefore justifying further detention of the applicant, so that this treatment could be provided.

Trial judge decision

The judicial review challenge was based on the contention that, as a matter of law, the Tribunal was not entitled to conclude that the test for detention set out in the 1986 Order was met, in circumstances where it was not envisaged that any component of the RM’s treatment would be administered in a hospital or an equivalent healthcare facility.

In delivering his decision, Justice Colton found: “It is clear from the authorities to which I have been referred and from a proper analysis of the legislation that the courts have taken a broad approach as to what is meant by medical treatment ‘in hospital’.”

Justice Colton held that the Tribunal was entitled to conclude that the patient’s severe mental impairment warranted detention in hospital. The fact that the proposed future treatment would not take place physically in a hospital was not determinative of the issue.

Court of Appeal

In considering this case, the court noted that the parties had not made any arguments about the differences between the England and Wales mental health legislation and the Northern Ireland legislation, despite the heavy reliance by the Tribunal decision on English case law.

The court considered the test for compulsory “detention for treatment” in the two jurisdictions. In Northern Ireland, a person must be suffering from “mental illness or severe mental impairment of a nature or degree which warrants his detention in hospital for medical treatment”.

The court was of the view that the use of this phrase in Northern Ireland’s provisions was very significant in the context of this case. They held that “warrants” in this context imported the concept of strict necessity.

The court noted that there were also differences in the definitions of “medical treatment” in both jurisdictions. These differences again highlighted the need for courts and tribunals in Northern Ireland to exercise caution when considering relevant English authorities.

The court found that the Northern Ireland test was more stringent than simply demonstrating that detention in hospital is necessary in order to effectively provide the envisaged medical treatment.

Detention could not be justified if the envisaged medical treatment regime could be effectively provided in a community setting. Further, detention of an individual in hospital for the purposes of medical treatment would only be lawful if the Tribunal was satisfied that a failure to so detain would create a substantial likelihood of serious physical harm to that individual or to other persons.

The court was “firmly of the view that it was inappropriate for the Tribunal to conclude that the statutory test for detention for treatment was met”. They found that there had been misuse of an Article 15 detention mechanism.

It stated that Article 15 cannot and should not be used for providing legitimacy to what amounts to detention in the community when the grounds for detention in hospital for medical treatment no longer exist.

Conclusion

Ultimately, the court was of the view that the Tribunal did not apply the correct legal test.

It sought to justify its decision by relying on a line of authority from England and Wales which dealt with the test applicable in England and Wales, rather than applying the different statutory test applicable in Northern Ireland.

In coming to this conclusion, this court was of the view that the learned trial judge similarly applied the wrong test and, therefore, the applicant’s appeal was allowed.