Development of DoL jurisprudence in NI via Guardianship caselaw Presentation to Joint MHC/ RQIA Conference Seán Mc Parland: Law Centre (NI) – Mental Health Legal Unit

Where it all began… Bournewood [2004] – European Court Human Rights “ The concrete situation was that the applicant was under continuous supervision and control and was not free to leave” para 91 The healthcare professionals “exercised complete and effective control over his care and movements” para 91 GB developed DoL safeguards, culminating in new statutory Schedule 1A of Mental Capacity Act being added in 2007.

Response in N. Ireland In NI the DHSSPS issued interim guidance in October HSC/MHDP – MHU 1/10 - revised It is 9 pages long (including a 3 page annex which summarises Bournewood) Unlawful to have care-plan amounting to DoL without prior authority of High Court. (para. 19) However, para. 25 states “ reception into guardianship might be appropriate in some cases. “ If it didn’t already exist, a link was created between guardianship and deprivation of liberty.

Power to require the patient to reside – Article 22(1)(a) Mental Health (NI) Order 1986 Anecdotal evidence that it gave rise to quite a few disputes. The concept of DoL is entangled with the concept behind this power in particular. The number of new Guardianship applications in E&W fell by 22% in the year 2009/10 – 2010/11 The NHS Information Centre noted the correlation with the introduction of the Supervised Community Treatment and DOLs regimes in Nov. ‘08 and April ’09 respectively

JR 50 case [2011] NIQB 43 Set in train a series of Guardianship cases in which the development of DoL jurisprudence in England/ Wales has been a factor. JR 50 judgment handed down 12/5/11 P was not able to leave unsupervised. Was this a DoL, and was it lawful (ref Art 29(2) MHO) Judge held he did not need to rule on the legality of any aspect of Guardianship powers. He found that it was entirely misconceived in the first place

“I am entirely satisfied that whatever else guardianship may or may not permit, it certainly does not permit one party to a dispute about the management of a vulnerable person to assert a borrowed primacy over any other party’s legitimate but conflicting interest. The idea that guardianship might be used in such a way offends fundamental principles of law and common sense… “ [paragraph 19 Mr Justice Treacy]

‘Best Interest’ declaration in High Court “Where there is an entrenched dispute between parties about the management of a vulnerable person, and where this dispute cannot be resolved by appropriate information sharing and genuine participative decision making, or if necessary by mediation, then the matter should be referred to the court for its guidance. Such disputes should certainly not be decided by one of the parties to the conflict. “ [paragraph 20]

JMCA case [2013] NIQB 77 P was subject to a Guardianship order. P could not leave residence unless under supervision. Trust unsuccessfully challenged his capacity to litigate. Judge held that care-plan did NOT amount to a DoL. He followed the EW Court Appeal case of Cheshire West.

JMCA case [2014] NICA 37 P appealed to the Court of Appeal NI. Case was postponed pending UKSC decision in Cheshire West. In a short judgment on the 12/5/14 the Lord Chief Justice said that if JR judge had made his decision in light of UKSC decision, he may well have deemed care-plan to have amounted to a DoL. Confirmed that guardianship does not allow for a DoL. Nor does it allow Trust to prevent P from leaving residence for incidental social purposes.

The Future in N. Ireland In another guardianship case, our High Court is considering what streamline processes might be necessary to accommodate applications to the Court for DoL declarations. It has been influenced in this strategy by Sir James Munby’s decisions in X & Ors [2014] EWCOP 25 and 37 Mental Capacity Bill (NI) – published for consultation May 2014 Guardianship re-imagined as Community Residence Requirement – still not a DoL

Future cont’d…….. If care-plan demands it, a separate DoL intervention will need to be sought. Currently Bill limits DoL interventions to hospitals and care homes. But in light of Cheshire West UKSC, it could be argued that they should be extended to supported living accommodations and other community settings. The judicial oversight will be provided by an expert Review Tribunal. Thus avoiding High Court bottleneck. (This approach was advocated for E&W by Lady Hale, Deputy President UKSC in a speech on )

A statutory definition of deprivation of liberty ? Is there an Acid Test? The person is under continuous supervision and control and is not free to leave