Download Development of DoL jurisprudence in NI via Guardianship caselaw

Development of DoL
jurisprudence in NI via
Guardianship caselaw
Presentation to Joint MHC/ RQIA Conference
05-12-14
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 2010.
• 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 17-10-14.)
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