About this case:

• Citation:
  [2021] NIQB 97
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Adrian Colton

The court held that systems in place to provide mental health services during the pandemic, even imperfect systems, ultimately met the Article 2 duty to protect human life.

Background

The applicant was a man in his early 50s who, as a child, experienced multiple incidents of serious sexual abuse by a number of adults, suffering psychiatric injury as a result. He has a long history of very serious mental health illness, including diagnosis of complex post-traumatic stress disorder, personality disorder, emotionally unstable and narcissistic traits and suicidal ideation.

The applicant continues to have complex needs as a mental health patient. His treatment includes taking extensive prescription medication for an extended period and regular admissions to mental health hospitals.

Since October 2017 he has been receiving mental health treatment in the community. This includes treatment at his general practitioner, treatment in his home and out-patient services. He also avails of assistance with crisis services, counselling services, occupational therapy and community psychiatric nursing.

It was the view of both the applicant and those treating him that it was in his best interests to receive care in the community rather than as an in-patient.

The complaint

The applicant claimed that since the beginning of Covid-19, the home treatment crisis response team (HTCR) has not adequately met his requirements. This service provides intensive home treatment and support to those experiencing severe mental health problems who would otherwise have no option but to be admitted to hospital.

More generally, he made the case that he had to make repeated admissions to a mental health institution as an in-patient because he considered the community treatment available to be inadequate.

He noted that the HTCR out-of-hours GP service failed to respond to his call on 20 January 2020; however, the court accepted that 10 other calls had been responded to by the HTCR team within the Trust’s two-hour response target.

HTCR was unaware of the referral on 20 January 2020 and unable to explain why the complaint had not reached them. As a result, the director apologised for the distress this incident caused the applicant.

On review, it was evident that calls and messages the applicant had left for staff had not all been returned in a timely manner, nor contact made on each occasion. It was acknowledged that this was not acceptable and fell below the standard expected of the service. Again, an apology was offered.

Accordingly, in this application the applicant sought the following primary relief:

1. A declaration that the respondent’s failures referred to above are unlawful on the basis that they breach Articles 2, 3 and 14 of the ECHR.
2. An order of certiorari.
3. A declaration that the proposed respondent has the duty to establish a system of inspection and regulation for NHS mental health treatment provision to persons in the community.
4. An order of mandamus requiring the proposed respondent to reconsider its decision as to inspection and regulation in this context in accordance with the law.

Determination

The applicant based his claim under the Human Rights Act 1998 seeking a declaration on the basis of alleged breaches of Article 2, Article 3 and Article 14 in conjunction with Articles 2 and 3 of the ECHR.

The court accepted that the duty to protect life can be extended into the issue of health care. For example, in Cyprus v Turkey [2002] 35 EHRR 231, it was held that there would be a breach of Article 2 if life-saving medical care which is available generally is withheld from an individual.

However, the breakdowns in communication outlined above, in the court’s view, could not be “elevated to sustain a case” that the system of mental health services in Northern Ireland was in breach of the state’s Article 2 or Article 3 obligations.

In this case, the applicant’s medical condition was such that he was at risk of dying by suicide. In terms of the state’s obligations, the court noted that there was in place a “state-sponsored provision of ongoing medical care and treatment to the applicant. There is also in place a system of regulation and supervision of that care”.

Conclusion

In these circumstances, it could not be argued that the state failed to provide appropriate health care in the context of Article 2. In terms of Article 3, the court found that the severity of inhuman treatment needed was also not established.

Ultimately, the judge found that the focus of this claim related to the macro policy area concerning the arrangements for the regulation and inspection of community mental health services, which was irrelevant to an ECHR-based challenge.