[1] This is a challenge to both the decision to detain the applicant under Art4 and later under Art12 of the Mental Health (Northern Ireland) Order 1986 ("the 1986 Order").
Relief Sought
[2] The applicant seeks the following relief:
Grounds upon which Relief is Sought
[3] The relief is sought on the following grounds:
Factual Background / Sequence of Events
[4] On 23 August 2012 the applicant was detained for assessment pursuant to Art 4 of the 1986 Order and subsequently detained for treatment pursuant to Art 12 of the same Order.
[5] The applicant was discharged from the above period of detention on 4 March 2013 on foot of a decision of the Mental Health Review Tribunal ("the Tribunal") and currently remains in hospital as a voluntary patient. On 18 March 2013 he was discharged from the hospital into the community.
[6] On 10 May 2014 the respondent acceded to the application of the approved social worker under Art 4 of the 1986 Order to detain the applicant for assessment. Both Form 2 and Form 3 were completed and submitted on that date. Form 7 in relation to accepting the admission was completed by Dr Murty.
[7] On 12 May 2014 Dr Finnerty completed Form 8 pursuant to Art 9(6) of the 1986 Order to extend the period of assessment to 48 hours and on 15 May 2014 he completed Form 9 pursuant to Art 9(8) of the 1986 Order to extend the period of assessment to 7 days.
[8] The applicant applied to the Tribunal for a review of his detention on 16 May 2014 and his solicitor requested copies of the applicant's detention forms from the respondent.
[9] On 22 May 2014 Dr Finnerty completed Form 10 for the purpose of detaining the applicant for treatment under Art 12 of the 1986 Order.
[10] The respondent provided the applicant's detention forms to his representative on 23 May 2014 and on 30 May 2014 the applicant's representative sent a pre-action letter to the respondent.
[11] Proceedings were lodged with the Judicial Review on 3 June 2014 and the applicant received a response to the pre-action letter. The leave hearing began on 4 June 2014 and when it recommenced on 5 June 2014 the parties indicated that they were prepared to deal with the matter by way of a rolled up hearing. The rolled up hearing commenced and at the conclusion of the days' hearing the Court granted the applicant leave and directed further affidavits be provided by the respondent. The applicant was discharged from detention by the respondent. The expedited hearing of the case concluded on 11 June 2014.
Statutory Framework
[12] Art 2(4) of the 1986 Order provides:
[13] Art 4 of the 1986 Order provides:
[14] Art 12 of the 1986 Order provides:
[15] Art 5 of the European Convention on Human Rights states:
[16] The 1986 Order Code of Practice (paras 2.55)
[17] The 1986 Order – A Guide (para 24)
[18] The 1986 Order – A Guide (paras 34-35)
Arguments
Applicant's Arguments
[19] The applicant argued that the respondent failed to follow the statutory procedure under the 1986 Order in detaining and continuing to detain him under the 1986 Order, that the respondent did not apply the correct test as prescribed by the 1986 Order, and that the respondent breached the applicant's rights pursuant to the ECHR in a manner that was not lawful or proportionate.
[20] The applicant submitted that in order to satisfy Art 5 of the ECHR the burden of proof in this matter has to fall on the respondent as they are the party seeking to justify the detention of the applicant.
Failure to apply the statutory test in Article 4 for detention
[21] The applicant submitted that the contents of Dr Doyle's entries on Form 3 (i.e. that the applicant's thought process is disordered, that he is unable to explain how there is no electricity or food in his house or to discuss his daily routine, and examples of the applicant's paranoid statements regarding persons in the community) do not contain any evidence that the applicant's judgement was so affected that he was, or would soon be, unable to protect himself from serious physical harm and that reasonable provision for his protection is not available in the community. Therefore in accepting this recommendation the respondent failed to adhere to the provisions of Art 4 of the 1986 Order when detaining the applicant for assessment.
[22] The applicant submitted that evidence of self-neglect cannot equate to evidence that the applicant would be unable to protect himself from serious physical harm; that despite the absence of food there is no evidence that the applicant was severely malnourished, despite the absence of electricity there is no evidence that the applicant was physically suffering as a result and that in spite of the unusual statements made there is no evidence that the applicant had drawn the adverse attention of other individuals or been subject to physical assaults or threats.
[23] The applicant submitted that Dr Doyle's final comment that he was 'currently mentally unwell and unable to care for himself in the community' disclosed the doctor's failure to apply the appropriate test. Consequently the form contained evidence of the applicant struggling to care for himself rather than evidence of the applicant being unable to protect himself against serious physical harm. The applicant submitted that the respondent should have recognised that the application was defective and should have been declined.
Failure to adhere to the provisions of Art 12 of the 1986 Order in the detention of the applicant for Treatment
[24] The applicant noted that the Responsible Medical Officer (RMO), when filling in Form 10, which is sufficient authority to detain the patient for treatment, relies not on Art 2(4)(a)(ii) (which Dr Doyle had relied upon solely on Form 3) but on Art 2(4)(b) (ii) (i.e. that the patient has so behaved himself that other persons were placed in a reasonable fear of serious physical harm to themselves). The applicant submitted that the complete abandonment of the ground that was the basis of admission for assessment was highly unusual particularly given the short period of only 12 days between the submission of Form 3 and the completion of Form 10. The applicant further submitted that this lends weight to the applicant's argument that Form 3 did not disclose evidence that the applicant would not be able to protect himself from serious physical harm in the community.
[25] The applicant argued that the statement of evidence supporting the RMOs assertion that the applicant fell within the Art 2(4)(b)(ii) test did not adhere to the Art 2(4) requirement. The applicant submitted that there was no evidence that the applicant had behaved violently towards other persons or that the applicant had so behaved himself that other persons were placed in reasonable fear of serious physical harm to themselves.
Arts 5 & 8 ECHR
[26] The applicant submitted that due to the procedural failures of the respondent it failed to lawfully detain the applicant and as such his Art 5 and 8 rights have been breached.
The Failure of the Respondent to Identify Information not known by the Mental Health Review Tribunal that puts a Significantly Different Complexion on the case.
[27] The applicant relied on the decision of R (von Brandenburg) v East London and City MH NHS Trust [2003] UKHL 58 to argue that:
The applicant submitted that no such information exists in the instant case and as such the ASW was not in a position to lawfully apply for his admission.
Respondents Arguments
Art 4 Arguments
[28] The respondent argued that there was clear evidence before the court to show that a proper construction of the Form 3 as completed by Dr Doyle on 10 May following her joint assessment of the applicant that day, highlighted that there were more than ample grounds upon which Dr Doyle and laterally the admitting hospital could find that the Art (2)(b) and Art 4(3) tests were met.
[29] The respondent submitted that the information provided on the Form 3 could properly be said to meet the Art 2(4) criteria as to the type of evidence that can be properly taken into account in reaching a conclusion as to the 'serious harm to self' test under Art 4 (2)(b).
[30] The respondent submitted that it had discharged the burden of establishing that as at 10 May 2014, circumstances were such that the applicant's judgement was so affected that he would at the very least, soon be unable to protect himself against serious physical harm, that is harm not trivial or minor, if not already unable to so protect. The respondent did not accept that any analysis of the process of the Form 3 application fell foul of the analysis of the 'serious harm' test set out in JR45 (2011) NIQB 17 .
[31] The respondent submitted that it was obvious and proper to infer from the evidence that the applicant would at the very least soon to be unable to protect himself against serious harm. The evidence recited is as follows:
[32] The respondent submitted that the Form 3 conveyed the essential elements of the grounding evidence above upon which a determination that the applicant would at least soon to be unable to protect himself against serious harm in the manner envisaged in JR45 .
[33] The respondent argued that the statutorily prescribed forms limit the level of detail that can be inserted thereon. The respondent contended that the Form 3 document created a sufficient basis upon which both the admitting Trust, and the applicant himself, would be aware of the grounds for the decision to admit for assessment.
Failure to identify information not known to the MHRT
[34] The respondent submitted that this argument should only fall to be considered if the court were to determine that there were no appropriate statutory grounds under Art4 to admit the applicant for assessment. If the respondent's submissions were accepted in that regard, then this avenue did not fall to be determined.
[35] The respondent submitted that the applicant's argument in this regard was based on a direct lift from the wording of Von Brandenburg . That case would only apply where the ASW was aware of the MHRT judgment. In this instant case neither the ASW nor the recommending GP had any access to or knowledge of the MHRT decision on 10 May.
Art 12 Arguments
[36] The respondent did not accept that a decision 12 days post admission relying on a different limb of the statutory test could be said to be highly unusual or inconsistent. Under the equivalent English test dealing with similar admissions criteria to detain based on serious harm, two medical opinions are required which are permitted to rely on separate grounds even on the same date of assessment.
[37] The respondent submitted that Form 10 taken as a whole could properly be found to include the foundation of his opinion that the applicant had so behaved that other persons were placed in reasonable fear of serious physical harm to themselves. It is an artificial and illogical position to invite the court to disregard the information on p1 of Form 10 in the context of the patient and his condition. Dr Finnerty has particular knowledge of the applicant grounded on the many years he has spent as his clinician.
[38] The respondent submitted that the requirements of the Art 2(4) test as analysed in JR45 were met - that the harm not be trivial or minor, that the violence or apprehended violence should be physical in nature, and that any apprehension of harm should import an objective element such as to avoid unfounded, irrational or ill motivated assertions of fear by some third party. The respondent stated that in this case these pre conditions are established by the evidence provided by Dr Finnerty.
Arts 5 & 8 ECHR
[39] The respondent argued that any such breaches are contingent on the liability of the respondent under the other headings, which was not accepted. The respondent accepted that Arts 5 and 8 are engaged by virtue of Arts 12 and 4 of the 1986 Order.
Discussion
[40] In the first instance I accept the respondent's contentions [summarised at para [35] above that R v East London and the City Mental Health NHS Trust (ex parte von Brandenburg) [2003] UKHL 58 has no application in the instant case since neither the ASW nor the recommending GP had access to or knowledge of the MHRT decision on 10 May. In any event I am satisfied as a matter of objective fact that the position of the applicant had materially changed between the MHRT decision and the date of the application for assessment
Issues relating to detention under Art 4
[41] A lawful admission to hospital under Art 4 may only be effected where the following statutory measures have been properly carried out (to paraphrase the relevant sections of the 1986 order)
[42] In the instant case the application was made on the basis that both grounds were made out and was accompanied by a medical recommendation. The applicant's complaint in relation to the Art 4 detention relates to the content of the medical recommendation in relation to the second required criteria i.e. the substantial likelihood of serious harm to himself or to another.
[43] Dr Doyle indicated on the relevant form that she was of the opinion that failure to detain the applicant would create a substantial likelihood of serious harm to himself on the basis of evidence of the type that tended to show that his judgement was so affected that he is, or would soon be, unable to protect himself against serious physical harm and that reasonable provision for his protection is not available in the community. The specific items of evidence in the doctor's statement of evidence are as follows:
[44] It seems uncontentious to me that a man suffering paranoid ideation, with disordered thought processes, who has no electricity or food in his home and cannot explain why this is so can reasonably and rationally be considered to be suffering from judgement so affected that at a minimum he is, or would soon be, unable to protect himself from serious physical harm. If he is unable currently to protect himself in the most basic way (i.e. by providing electricity and food) then this will, in the first instance, soon cause serious (i.e. 'more than trivial or minor' per JR45 ) physical harm. Even if it may take some time for the effects of lack of food, heating and washing facilities to become apparent, it remains the case that at the moment in time when the doctor was assessing him it appeared to her that at that time he was actually unable to protect himself from those things. He is creating for himself a situation where serious physical harm is inevitable and he doesn't seem to do anything about it, thus, he clearly meets the test.
[45] For these reasons I do not believe that the detention under Article 4 was unlawful.
Issues relating to detention under Art 12
[46] A person may be detained for treatment under Art 12 where, during the assessment period he is examined by a medical practitioner who prepares a report which includes:
[47] On the statutory form the RMO, in the relevant part, indicated his opinion that failure to detain the applicant would create a substantial likelihood of serious physical harm to himself or others on the basis of evidence indicating that he had so behaved himself that other persons were placed in reasonable fear of serious physical harm to themselves. The specific items of this evidence are listed on the form as:
[48] Elsewhere on the form, to evidence his opinion that the patient is suffering from a mental illness which warrants his detention in hospital for medical treatment, Dr Finnerty states:
[49] In his affidavit Dr Finnerty expands on the evidence on Form 10 as follows:
[50] While I appreciate that the RMO has worked with the applicant for many years, and while I do accept his affidavit evidence that he genuinely believed that the relevant test was made out, no actual acceptable evidence making out the ground was contained on the form and therefore no lawful detention under Art 12 was effected.
[51] The Art 12 report is only sufficient authority for the responsible authority to detain the patient in the hospital for medical treatment but only if the cumulative statutory requirements for the report spelt out in Art 12 have been satisfied. The completion of this report is therefore no mere formality as it is this report which if, and only if, it meets the requirements of Art 12 constitutes sufficient authority to detain. Persons involved in administering this scheme on the ground must understand that these statutory forms, perfunctory as they are, are not a mere formality, they are an important safeguard and must be capable of demonstrating that the statutory test is made out on acceptable, permissible evidence and that as such the patient is not being deprived of his liberty unlawfully. I do not doubt the doctor's judgement in any way, and as I said, it was his job to ensure the applicant got the care that he needed. On top of their clinical duties the persons administering the scheme must clearly demonstrate in the prescribed manner (which is far from onerous) that the two tests are made out and that the detention is lawful.
[52] All that is required is for the doctor to fill in some rational reason to justify the view they have arrived at. If the doctor had simply stated on the form 'I have observed these presentations [staring, verbal abuse, evidence of increased psychosis] and in my clinical experience with RS these presentations usually preface a violent outburst' I believe that would have been sufficient to meet the test. In this regard I note that the 'behaviour placing persons in reasonable fear of serious physical harm' test is expressed in the past tense, however I would caution that this does not allow the form filler to rely on purely historical evidence, unless as in this case, there is some reason to believe that that historical evidence is currently relevant . Any use of evidence in this manner must of course disclose a rational connection between historical behaviour and current behaviour.
[53] Further, I note that the doctor is obliged to 'specify whether other methods of dealing with the patient are available and, if so, why they are not appropriate' [see Art 12(1)(d)]. This requirement was not addressed at all on Form 10. This a further reason why no lawful detention under Art 12 was effected.
Conclusion
[56] For the above reasons the judicial review must be allowed. I will hear the parties as to what further relief, if any, is required.