Court of Appeal in Northern Ireland Decisions

Factual background

[5] On 12 December 2000 Mrs Connor was detained under the 1986 Order and transferred to Holywell Hospital. In June 2001 Mrs Connor appealed to an Appeal Tribunal against her detained status; her detained status was upheld. In November 2001 she was transferred to Chisholm House as a detained patient. In May 2002 she became the subject of a guardianship order which remains in force. She is currently diagnosed as suffering from cognitive impairment as a result of long-term alcohol abuse.

[7] Mrs Connor claims that from the time that she returned from honeymoon, she had expressed the wish to live with Mr Connor at their matrimonial home. The trust maintains that it first became aware of this on receipt of a letter from her solicitor dated 10 December 2002 asking for confirmation that the trust would permit Mrs Connor to reside with her husband with immediate effect. On 12 December 2002, before this letter was received, the existing guardianship order was renewed and thereafter Mrs Connor was permitted to have one overnight visit per week with her husband.

[8] In the report prepared for the application to renew the guardianship order the risks of harm to Mrs Connor were summarised as follows:

"Mrs Connor's ability to care for herself, within a structured environment such as a hospital or residential care, has improved over the last year. However … many of her difficulties in relation to independent living remain. She appears to continue to have memory deficits and has demonstrated little, if any insight into any of the potential dangers attached to returning to the environment in which she was consistently subject to physical injury and deterioration in her physical and mental health. She appears to have little insight into the negative effects of alcohol use on her physical and mental health.

Mrs Connor continues to be unable to spontaneously make plans and carry them through in her daily living skills, although she does react to prompting from others and fitting in with the organisational systems of a hospital or residential unit. She would not be able to cope with living independently, and consequently remains very open to exploitation. She would be in a very vulnerable position, should she return to her previous home circumstances, as she informs she would like to do.

…

Mrs Connor would be unlikely to survive for very long, should she return to her previous circumstance, as she lacks the capacity to protect herself from serious physical harm."

[10] On 25 March 2003 it was reported that there were no concerns in relation to Mrs Connor's mental health and that she was attending appointments as arranged in relation to her physical health difficulties. At a case discussion on 26 March 2003 the trust decided to permit Mrs Connor to have two consecutive overnight visits, Thursday and Friday nights. It was intimated that if two overnight stays went well for a period the trust would consider extending these. At the case meeting on the 8 May there was general satisfaction with Mrs Connor's progress. Mr Spiers for the trust ended the meeting by explaining that :

"… through working together it was hoped long term the periods of leave could be increased and eventually Mr and Mrs Connor would live together seven days a week if there were no problems concerning us as guardian."

[12] At the case meeting on 11 September 2003 concern was expressed that, since that last meeting, Mrs Connor was reported to have drunk alcohol, (two/three glasses of wine, with her daughter). It was decided not to increase the number of overnight stays at home because of the trust's concern about the consumption of alcohol and the fact that Mrs Connor had returned early from home leave; had not been consistently attending Antrim New Horizons, (part of Action Mental Health, a voluntary organisation operating within Northern Ireland to provide rehabilitation and training to people suffering or recovering from mental illness); and was taking more Kapake, a highly addictive painkiller, for a sore back.

[13] In a social work report dated 1 October 2003 it was stated that since 26 June 2003 the periods of home leave being availed of by Mrs Connor and her attendance at Antrim New Horizons had been erratic but it was also reported that the staff at Chisholm House had raised no concerns about Mrs Connor's periods of leave or in relation to her mental and physical well-being. Mrs Connor disputed the statement that her compliance with home leave was erratic. She often takes a taxi back to Chisholm House and this was what caused a variation in the time of arrival. In relation to the incident about alcohol Mrs Connor explained that a friend of her daughter's had prepared a meal and wine was served with the meal; she drank around half a glass out of politeness. She claimed that her behaviour demonstrated an awareness of, rather than a lack of insight into, her problems.

[14] Judgment was delivered on 25 March 2004 dismissing the appellant's application for judicial review. Since that date the trust has continued to review Mrs Connor's circumstances. In May 2004 a Mental Health Review Tribunal decided that she should remain subject to guardianship. In September 2004 the trust reviewed her circumstances and extended her home leave to four consecutive nights a week (Thursday to Sunday). Currently Mrs Connor is seen by a mental health social worker each Monday and by a community psychiatric nurse or social worker each Friday. Her circumstances are to be reviewed again by the Trust in December 2004.

Statutory Background

[15] Guardianship is governed by the Mental Health (Northern Ireland) Order 1986. A guardianship order may only be made if the patient is suffering from mental illness or severe mental handicap and it is necessary in his interests that an order is made (article 18). A guardianship application may be made by the nearest relative of the patient or by an approved social worker. The making of a guardianship order confers on the guardian certain specified powers including the power to require the patient to reside at a specified place. Article 22 provides: -

"22. — (1) Where a guardianship application, duly made in accordance with the provisions of this Part and forwarded to the responsible Board within the period allowed by paragraph (2), is accepted by that Board, the application shall, subject to regulations, confer on the Board or person named in the application as guardian, to the exclusion of any other person—

(a) the power to require the patient to reside at a place specified by the Board or person named as guardian;

(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;

(c) the power to require access to the patient to be given at any place where the patient is residing to any medical practitioner, approved social worker or other person so specified.

(2) The period within which a guardianship application is required for the purposes of this Article to be forwarded to the responsible Board is the period of 7 days beginning with the date on which the patient was last examined by a medical practitioner before giving a medical recommendation for the purposes of the application.

...3) A patient received into guardianship in pursuance of a guardianship application may, subject to the provisions of this Order, be kept under guardianship for a period not exceeding 6 months beginning with the day which the guardianship application was accepted, but shall not be so kept for any longer period unless the authority for his guardianship is renewed under Article 23."

Article 23 makes provision for the duration and renewal of guardianship orders. Article 24 makes provision for the discharge of guardianship orders.

[16] The trust, as a public authority, is subject to section 6 (1) of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right. The convention right principally relied on by the appellant is article 8. It provides: -

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[17] The appellant also relies on article 12, which provides: -

"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."

The decision on the judicial review application

"It was submitted by counsel on behalf of the applicant that the proper approach in this type of case is for the respondent to demonstrate the necessity of the restrictions imposed, against the background of the applicant's rights to marry, found a family and reside with her husband. To that end the test was 'necessity' and no more, in order to achieve the objective. Counsel for the applicant submitted that the various reports and assessments written by the social workers and others and relied on by the respondent, do not demonstrate that the Trust considered the applicant's situation against the background of her right to marry and found a family or her right to a private and family life. As counsel so pertinently put it, there was no analysis of the applicant's situation 'through the prism of the European Convention' nor was there any analysis of the alternatives that might be open to the Trust."

"Social workers require to write reports for Courts or, as in this case, in support of the appointment of a guardian. I do not consider that they require to specify in their reports any Convention rights that might be engaged or to fashion their reports around them. They require to know and to act in accordance with the European Convention, but not to write reports like legal judgments. Where, as in this instance, a Court is considering the actions social workers have taken, it is for the Court to determine whether their actions are in conformity with, or in breach of, a Convention right. It was suggested that in this case the social workers appear not to have had at the forefront of their minds the applicant's right to reside with her husband. While that 'right' may not be specifically mentioned in the reports, it is clear that the Trust were actively considering the relationship between the applicant and her husband and the question of overnight stays. In those circumstances the Trust were dealing with the substance of the issue in the context of where and with whom the applicant should reside."

The appeal

[22] For the appellant Mr Larkin QC submitted that the judge was wrong not to have recognised that the failure of the trust to address her article 8 rights rendered their decision insupportable. He suggested that the judge's conclusion that the decision of the trust was proportionate was unsupported by analysis and that, in any event, the judge's view that it was not in breach of article 8 could not substitute for a proper process of reasoning by the decision-maker itself.

Article 8

(i) The legislative objective must be sufficiently important to justify limiting a fundamental right;

(ii) The measures designed to meet the legislative objective must be rationally connected to that objective – they must not be arbitrary, unfair or based on irrational considerations;

(iii) The means used to impair the right or freedom must be no more than is necessary to accomplish the legitimate objective – the more severe the detrimental effects of a measure, the more important the objective must be if the measure is to be justified in a democratic society – see Lester & Pannick paragraph 3.10.

Article 12

Conclusions