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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
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Cite as: [2001] NIQB 16
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Neutral Citation no.[2001] NIQB 16
Ref:
COGC3409
Judgment: approved by the Court for handing down
Delivered:
04.05.2001
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
COGHLIN J
As appears from her amended notice of motion the applicant in these proceedings, Sylvia O'Sullivan, seeks judicial review of the decision by the Department of Health & Social Services and Public Safety ("the Department") removing her from the Knockbracken Healthcare Park in Northern Ireland to the State Hospital at Carstairs in Scotland. The applicant also seeks a declaration that in failing to provide special accommodation for persons requiring treatment under conditions of special security the Department is in breach of its obligations under Article 110 of the Mental Health (Northern Ireland) Order 1986, the Human Rights Act 1998 and the Northern Ireland Act 1998. The applicant further seeks an Order of mandamus compelling the Department to provide such special accommodation within Northern Ireland.
Factual background
The applicant, who is now 30 years of age, had a disturbed childhood and adolescence and in June 1988 she was voluntarily admitted to Knockbracken Healthcare Park complaining of "thought insertion and auditory hallucinations" after a period of solvent abuse. A diagnosis of paranoid schizophrenia was made. A series of further admissions to Knockbracken Healthcare Park followed over the subsequent years and on 17 January 1999 she was again admitted to Knockbracken Healthcare Park having set fire to her house upon three occasions in a single week. She had previously set fire to premises in which she resided and in April 1992 and in March 1996 she was convicted of arson.
In January 1999 the plaintiff's admission to Knockbracken Healthcare Park was compulsory in accordance with Part II of the Mental Health (Northern Ireland) Order 1986 since it was evident that the mental disorder from which she was suffering had resulted in episodes of both self-harm and the risk of violence to others. On admission the applicant claimed to be suffering from auditory hallucinations and expressed persecutory ideation. The applicant was admitted to Avoca Ward which is a locked ward used for the treatment of acutely disturbed patients. However, Avoca Ward generally caters for short and medium stay patients and, in view of the applicant's continuing problems, on 26 January 2000 she was transferred to Shimna Ward which caters for longer terms patients and which can be locked if necessary.
The applicant's stay in Shimna Ward was difficult and unsettled with frequent attempts at self-harm. On 5 February 2000 the applicant attacked an elderly female patient with a razor blade. The attack took place when the other patient was sleeping and the victim sustained lacerations to her face and forearms. The applicant subsequently informed the medical staff that she had planned the attack for around a week, that she had chosen the victim because she was the oldest and most vulnerable patient on the ward and that her intention had been to "cut her throat and kill her". She described her actions as an attempt to justify being moved back from Shimna to Avoca Ward and such a transfer did take place on 7 February 2000. The applicant later stated that the remark that she had made about intending to kill her victim was "a lie to get me back" although she confirmed that she had chosen her as the "softest target" and that she had wanted to "maim her".
Subsequent to the razor attack and her return to Avoca Ward the applicant was closely supervised by medical staff and the specialist responsible for her care, Dr Browne, consultant forensic psychiatrist, consulted both with the supervisory staff and with his colleague Dr Loughrey, consultant psychiatrist. As a result of these consultations a decision was taken to arrange for the applicant to be assessed by Dr Black, consultant forensic psychiatrist at the State Hospital, Carstairs, Scotland, so that an informed decision could be taken as to whether it would be appropriate to transfer the applicant to Carstairs. Dr Black, together with two of his colleagues, visited the applicant at Knockbracken Healthcare Park on 25 February 2000 for the purpose of carrying out the assessment and, in the course of a letter, dated 24 March 2000 to Dr Browne, Dr Black, after confirming the diagnosis of schizophrenia, went on to express the following opinion:
"She is someone who presents a considerable risk to others. Even setting aside the recent incident, her history of fire-setting is considerable and has continued within the hospital. The recent assault is extremely alarming. She very seriously damaged a vulnerable patient for no reason other than a wish to manipulate her circumstances. I would put this down to severely impaired judgement as part of her process psychotic condition. I agree with you that she warrants treatment in conditions of special security. She has been nursed two to one since the assault and it is difficult to see how this could be safely relaxed in Knockbracken. I would propose transferring her to the State Hospital and I further propose that we invite you to review her in about six months time."
In the course of his affidavit sworn on 20 December 2000, Dr Browne confirmed that the applicant's situation had been discussed with her by medical staff upon numerous occasions and that he in particular had discussed her situation with her on 8 March 2000. On 13 March 2000 Dr Browne notified the applicant that she had been accepted for admission by the State Hospital at Carstairs. Dr Browne has a note dated 15 March 2000 indicating that the applicant appeared to accept the news of being moved to Carstairs in a matter of fact fashion but, at paragraph 9 of his affidavit, he indicated that he subsequently received reports from staff that the applicant felt unhappy about the proposed move and had been writing to various bodies seeking for her situation to be reconsidered. Dr Browne further discussed the applicant's move with her on 23 March 2000. The applicant's transfer to Carstairs took place on 13 April 2000.
On 14 September 2000 Dr Browne travelled to the State Hospital at Carstairs for the purpose of reviewing the applicant's situation. Dr Brown interviewed the applicant and consulted records relating to her stay at Carstairs. Dr Browne's enquiries confirmed that there had been a number of incidents involving the applicant including self-harm and attacks by the applicant upon both a fellow patient and member of staff. Both Dr Browne and Dr Black agreed that, in the circumstances, the initial plan of a six-month stay at Carstairs would have to be extended. Dr Browne intends to further review the applicant's detention in the future but, in the meantime, he remains satisfied that, having regard to the significant risk which the applicant poses both to herself and others, her effective management requires her placement in a medium secure unit such as the State Hospital at Carstairs. Such a unit is not available presently in Northern Ireland which has only low security facilities such as Avoca and Shimna Wards.
On 20 November 2000, after the institution of the judicial review proceedings, the applicant's solicitors confirmed by letter that, having inspected the applicant's medical records, they accepted that she required special accommodation due to her violent and dangerous propensities.
Legislative and administrate background
The transfer of the applicant to Scotland
The applicant is currently detained under Article 12 of the Mental Health (Northern Ireland) Order 1986 ("the 1986 Order") and Article 134(6) of the 1986 Order enables the Secretary of State or the Department to authorise the removal from Northern Ireland of a patient under Part VI of the 1983 Act or Part VII of the 1984 Act. The 1984 Act is a reference to the Mental Health (Scotland) Act 1984, Article 81 of which, as amended by Article 3 of the Mental Health (Northern Ireland) (Consequential Amendments) Order 1986 relates to the removal of a patient to Scotland. Article 81(1) of the 1984 Act provides as follows:
"81.-(1) If it appears to the responsible authority, in the case of a patient who is for the time being liable to be detained or subject to guardianship under the Mental Health Act (Northern Ireland) 1961, that it is in the interests of the patient to remove him to Scotland, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the responsible authority may authorise his removal to Scotland and may give any necessary directions for his conveyance to his destination."
Subsection (2) of Article 81 provides that where such a person is transferred, upon admission to a hospital in Scotland, the patient shall be treated as if on the date of admission the patient was admitted in pursuance of an order or direction given under the corresponding enactment in force in Scotland.
The Department authorised the transfer of the applicant to Carstairs State Hospital in accordance with the Act of 1984 and the Order of 1986 on 4 April 2000. In accordance with the requirements of Article 134(6) of the 1986 Order notification of the proposed transfer was given to John O'Sullivan, the nearest relative of the applicant, and the Mental Health Commission on 4 April 2000.
John O'Sullivan as the father of the applicant, fell within the definition of "nearest relative" afforded by Article 32 of the 1986 Order a person who enjoys a number of powers and rights of consultation under the 1986 Order.
The Mental Health Commission for Northern Ireland was established by Article 85 of the 1986 Order and, by virtue of Article 86, it was made subject to the duty of keeping under review the care and treatment of patients including the exercise of powers and the discharge of duties conferred or imposed by the Order. The functions of the Commission include making enquiries into any case where it appears to the Commission that there may have been deficiency in care or treatment of a patient or improper detention and, as often as it thinks appropriate, the Commission may visit and interview in private patients who are liable to be detained under the Order. The Commission may bring to the attention of the Department, the Secretary of State, a Board or any other body or person any matter concerning the welfare of patients which the Commission considers ought to be brought to their attention. By virtue of Article 86(3) of the 1986 Order, in the exercise of its functions, the Commission may, where it thinks fit, refer to the Review Tribunal the case of any patient who is liable to be detained in hospital or is subject to guardianship under the Order.
The Mental Health Review Tribunal was constituted in accordance with Article 70 and Schedule 3 of the 1986 Order. The constitution of the Tribunal with its current powers follows from the decision in X v United Kingdom [1981] 4 EHRR 181.
The provision of special accommodation
Article 110 of the 1986 Order provides that:
"110. The Department may provide such accommodation (in this Order) referred to as 'special accommodation' as appears to it to be necessary for persons subject to detention under this Order who, in the opinion of the Department, require treatment under conditions of special security on account of their dangerous, violent or criminal propensities."
The affidavit sworn on 9 January 2001 by William Boyd Turner, principal officer in the Disability and Mental Health Unit of the Department, confirmed that the provision of medium secure hospital accommodation for mentally disordered patients had been under consideration for some time. The Department accepts that such a facility is required and it is Department policy that a thirty-place Regional Secure Unit should be provided. Mr Turner exhibited to his affidavit the "Report of the Working Group on Secure Accommodation", dated January 1994, page 30 of which contained a recommendation that such a unit should be provided. In its Regional Strategy for Health and Social Well Being 1997-2002 the Department set the date of 2002 as a target for the establishment of such a medium secure unit in Northern Ireland. Mr Turner recorded that the Department regarded this development as a priority which was currently under active consideration in the context of an outline business case provided by the South & East Belfast Trust in June 2000. However, Mr Turner also pointed out that any such facility would have to compete with calls upon public funding from other priority developments.
The issues
Mr Potter appeared on behalf of the applicant while the respondent Department was represented by Mr Maguire and I am indebted to both sets of legal representatives for the industry with which their skeleton arguments were prepared and the clarity with which their submissions were presented.
On behalf of the applicant, Mr Potter submitted that the decision to transfer her from Northern Ireland to the State Hospital at Carstairs in Scotland was unlawful as constituting a breach of her rights both according to domestic law and according to the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). In relation to domestic law Mr Potter argued that the transfer was contrary to the rules of natural justice insofar as the applicant had not been consulted nor had she been given the opportunity to make representations or to participate in a fair hearing. In relation to the Convention Mr Potter grounded his submissions upon alleged breaches of the applicant's right to respect for private and family life under Article 8 and her right to a fair and public hearing in the determination of her civil rights and obligations in accordance with Article 6.
It may be convenient to commence by considering the applicant's Convention rights since, whether as a consequence of Section 24 of the Northern Ireland Act 1998 or Section 6 of the Human Rights Act 1998, it was common case between the parties that the Department was, at all material times, a public body which had no power to act in a way that was incompatible with a Convention right.
It was also common case between the parties that the applicant had been lawfully detained in hospital in accordance with the provisions of the Mental Health (Northern Ireland) Order 1986, and such lawful detention must, in itself, adversely affect the ability of any person to participate in home and family life. Mr Potter referred to a number of cases relating to persons serving periods of imprisonment and by analogy sought to establish that persons lawfully deprived of their liberty, whatever the cause, nevertheless, should be able to enjoy Article 8 rights at an appropriate level. In particular, Mr Potter drew the attention of the court to the Commission decisions in Ouinas v France (1988) 65 DR 265, Wakefield v UK (1990) 66 DR 251 and McCotter v UK (1993) 15 EHRR CD 98. These cases do seem to confirm that those who are lawfully deprived of their liberty are not thereby deprived of their Article 6 rights. Similar principles apply at common law and, in commencing judgment in the Court of Appeal in R v Secretary of State for the Home Department, ex parte Simms and another [1998] 2 All England Reports 491 Judge LJ observed, at page 506:
"When serving the custodial sentences imposed to punish them for their crimes, convicted criminals do not become outlaws, outside or beyond the protection of the law. It is axiomatic that 'the convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication' : see Raymond v Honey [1982] 1 All England Reports 756, [1983] 1 AC 1."
Convention authorities confirm that, in the case of prisoners, Article 8 rights may be qualified or restricted eg closed visits, if justified, do not breach Article 8 X v UK (1979) 14 DR 246; a prisoner has no right to choose where he will serve his sentence and only in exceptional circumstances will the detention of a prisoner a long way from home constitute a violation of Article 8 McQuiston v UK (1986) 46 DR 182: McCotter v UK (1993) 15 EHRR CD 98. Mr Potter referred me to the observations by the Commission in McCotter that Article 8 required the State to assist prisoners as far as possible to create and sustain ties with people outside the prison in order to facilitate their social rehabilitation and emphasised that this was just as important, if not more so, in the case of compulsory detained mental patients. In this context Mr Potter referred me to paragraph 5.8 of the Report of the Working Group on Secure Accommodation, published in 1994 and, in particular, the passage which reads:
"- Geographical Isolation
Patients who are transferred to Carstairs often complain of isolation and a change of culture. It is difficult for relatives and friends to visit and financial assistance for visitors is limited. This has implications for both the patients' quality of life and their chances of rehabilitation. Indeed it could be said that mentally disordered offenders are treated in some ways less favourably than their 'ordinary' prisoner counterparts."
Mr Potter next submitted that, since the transfer to Carstairs clearly engaged Article 8 rights, the applicant was entitled to have those rights determined in accordance with Article 6(1) the material part of which provides that:
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Mr Potter referred me to the right of a patient (in Scotland) transferred to a State Hospital to appeal to the sheriff in accordance with Section 29(4) of the Mental Health (Scotland) Act 1984. Section 113 of the same Act provides that, in any such appeal, the sheriff shall give such a person an opportunity to be heard either in person or by representative. Under the provisions of the Mental Health (Scotland) Act 1984 the sheriff performs similar functions to those carried out by the Mental Health Review Tribunal under the provisions of the Mental Health (Northern Ireland) Order 1986 although the Mental Health Review Tribunal currently does not appear to have any equivalent function in relation to the transfer of patients.
Mr Potter submitted that, in accordance with its obligation to read and give effect to legislation in a manner compatible with Convention rights, as required by Section 3 of the Human Rights Act 1998, the court should interpret the 1986 Act so as to create an equivalent right for the applicant to appeal against her transfer to Carstairs to the Mental Health Review Tribunal. On behalf of the respondent Mr Maguire submitted that there had not been any determination of the applicant's civil rights in the manner envisaged by the Convention and, in particular, there was no "dispute" or "contestation" between the parties. He argued that the decision to transfer the applicant resulted from a professional assessment of her condition reached by a number of qualified experts and about which there was no dispute.
As the Court of Appeal in Northern Ireland has recently pointed out In the Matter of an Application by Belfast Telegraph Newspapers Limited (unreported April 2001) the definition of "civil rights" for the purpose of Article 6(1) is a "notoriously difficult area of law". At page 10 of his judgment Carswell LCJ referred to two principles which appear to be established by the authorities as being:
"1. There must be a 'contestation' or dispute at the national level over civil rights and obligations recognised under domestic law.
2. The result of the proceedings involving determination of those rights must be directly decisive, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play."
In Kaplan v United Kingdom (1980) 4 EHRR 64 the European Commission of Human Rights made the following observations at page 88 of its opinion:
"The Commission has held that where Article 6(1) applies to an administrative process, it may be sufficient that a court procedure is available at some stage after the initial administration decision. It has left open the question whether Article 6(1) would apply both to the administrative and the judicial part of restitution proceedings in the Federal Republic of Germany, or whether it covers only the proceedings in court. It recalls that it is also held that proceedings concerning the registration of patients fall outside the scope of Article 6(1) on the ground that this is an 'essentially administrative' matter.
154. In the Commission's view the essential role of Article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a 'civil' character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission's opinion apply, to the acts of the latter even if they do affect 'civil rights'. It could not be considered as being engaged in a process of 'determination' of civil rights and obligations. Its function would not be to decide ('décidera') on a claim, dispute or 'contestation'. Its acts may, on the other hand, give rise to a claim, dispute or 'contestation' and Article 6 may come into play in that way."
A similar approach was adopted in X v United Kingdom (1998) 25 EHRR CD 88. In my view the power of the Department to authorise the transfer of the applicant in accordance with Article 134(6) of the Mental Health (Northern Ireland) Order 1986 is the type of legal power exercised by an administrative body to which the Commission referred in the Kaplan decision. It seems to me that an analogy may be made between this power and the power to vary the security classification of prisoners which may also have an effect upon, inter alia, Article 8 rights. In Brady v United Kingdom (1979) 3 EHRR 297 the applicant's complaints included the fact that, as a Category 'A' prisoner, his correspondence had to be vetted and he was not permitted unsupervised visits. The applicant also objected to the secrecy surrounding the composition and
deliberations of the Category 'A' Committee and the unfairness of their procedures. At page 301 of its opinion the Commission said:
"Insofar as the applicant is complaining about alleged unfairness in the determination of this Committee the applicant's implied argument is that the issue falls, for consideration under Article 6(1) of the Convention which ensures a fair hearing for everyone 'in the determination of his civil rights and obligations or of any criminal charge against him'. However, the decision of the Committee to classify a prisoner as Category 'A', in view of the security risk which he presents, is not a determination of such matters, not being a question of civil rights or obligations or criminal charges, but an administrative classification. In this respect the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27(2)."
Accordingly, I reject the applicant's submission that the decision to transfer the applicant to Carstairs State Hospital attracted the application of Article 6(1) of the Convention.
If I am wrong about this and the decision to transfer the applicant to Carstairs did attract the provisions of Article 6(1) it then becomes necessary for the court to consider whether the overall process, that is the combination of the original decision-making process together with the judicial review application, complies with the relevant Convention requirements. The Convention jurisprudence establishes that where a decision affecting an individuals "civil rights and obligations" has been taken by an executive or administrative body in circumstances that do not comply with Article 6(1) compliance may still be achieved if an appeal is provided to a judicial body capable of providing the requisite guarantees. In the Kaplan case the Commission said, at paragraph 151 of its opinion:
"As the court has held in the Ringeisen and König cases Article 6(1) may be applicable in cases concerning the exercise of such public powers. Nevertheless, Article 6 does not, in the Commission's opinion, prohibit the conferment on public authorities of powers to take action affecting the private rights of citizens. It does not go so far as to provide that all acts, decisions or measures which affect private rights must themselves be taken by a tribunal. Such a conclusion, apart from being in conflict with the common position in the contracting States both today and when the Convention was drafted, would also not be warranted, in the Commission's opinion, by a proper interpretation of Article 6(1)."
In addition I note that, even if I was correct in holding that the Department's decision to transfer the applicant did not attract Article 6(1), I would also have to consider whether the judicial review proceedings complied with Article 6(1) if the transfer of the applicant had given rise to a dispute as to the applicant's Article 8 rights. According to the affidavit sworn by the applicant's solicitor, Ms Jill Downing, subsequent to her transfer to Carstairs the Reverend Leslie Carroll was unable to continue his monthly visits although he was able to maintain telephone contact. A long standing friend of the applicant who visited the applicant two or three times a year and with whom the applicant spent a number of Christmas holidays while she was detained in Northern Ireland has only been able to visit her on a much more restricted basis after her transfer to Carstairs. It also appears that the applicant had a relationship with a Mr Brian Harris who is currently an in-patient at Knockbracken. It is clearly the wish of the applicant that the reduction or attenuation of these relationships, thereby adversely affecting her Article 8 rights, should be taken into account in the judicial review proceedings.
As I have already noted, in the course of his affidavit, Dr Browne recorded that he personally notified the applicant that she had been accepted for admission by the State Hospital at Carstairs and that she seemed to accept this news in a "matter of fact fashion". He also recorded that staff subsequently reported the applicant seeking assistance for her situation to be reconsidered and he further discussed her transfer on 23 March 2000. Both the applicant's nearest relative and the Mental Health Commission were notified in accordance with the provisions of the Mental Health (Northern Ireland) Order 1986 and neither made any representations as to the transfer. The Mental Health Commission is an independent monitoring and investigative body established by Part VI of the 1986 Order and its functions are detailed at Article 86 as already noted.
Mr Potter's submission that judicial review failed to comply with the requirements of Article 6 was focused upon the inability of the procedure to provide "a hearing on the merits" and he relied upon a number of authorities including Albert and Le Compte v Belgium (1983) 5 EHRR 533 and W v UK (1988) 10 EHRR 29. However, as the European Court of Human Rights has repeatedly emphasised, the application of Convention rights must be considered realistically in the context of the individual case. In practice, Article 6 requires no more than that the applicant is able to pursue before a court or tribunal the particular points that he wishes to raise by way of challenge to the relevant decision. The subject matter of the decision, the manner in which the decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal are all relevant. However, provided the applicant is able to put before the court or tribunal the matters and arguments which he or she seeks to pursue, the fact that the court or tribunal does not have a primary fact finding function is irrelevant and cannot give rise to a breach of the Article. In such circumstances, Mr Potter was asked to indicate any specific issues as to the facts or merits which the applicant was inhibited from pursuing as a consequence of the nature of judicial review proceedings. In the event, Mr Potter was unable to do so and confirmed that he did not seek to submit any further affidavit evidence either in relation to the medical decision to transfer the applicant to the State Hospital at Carstairs or to supplement the material already submitted in relation to the effect that such a transfer would have upon the applicant's relationships.
In such circumstances, it seems to me the issues raised in relation to the applicant's Convention rights can be properly dealt with by this court whether the judicial review proceedings are seen as part of a combined procedure in which those rights were engaged from the outset or, as I prefer, in which they were first placed directly in issue by the institution of the judicial review proceedings. No issue has been joined between the parties as to the validity of the diagnosis by the relevant medical experts nor as to the nature and extent of the applicant's relationships deposed to by her solicitor on affidavit. Article 8(2) qualifies the right to respect for private and family life in the following terms:
"There shall be no interference by a public authority with the exercise of this right except such as 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."
The applicant has accepted that her transfer to Carstairs has taken place in accordance with the law and it is a matter for the court to consider whether such interference was necessary in a democratic society in the interests, in this particular case, of the protection of the applicant's health the prevention of disorder and crime and the protection of the rights and freedoms of others. In performing this exercise I take into account the factual background to which I have referred and the Strasbourg jurisprudence, including in particular, the principle of proportionality as I am required to do by Section 2 of the Human Rights Act 1998. Having done so, I am quite satisfied that the breach of the applicant's Article 8 rights resulting from her transfer to Carstairs has been shown to be necessary and proportional and I reject this aspect of the application.
The respondent's failure to provide secure accommodation in Northern Ireland
As I have indicated earlier in this judgment the applicant relied upon the power afforded to the Department by Article 110 of the Mental Health (Northern Ireland) Order 1986 and Mr Potter referred to both the affidavit of Mr Turner and the report of the working group exhibited thereto for the purpose of emphasising the undoubted need to provide "special accommodation" in this jurisdiction. Mr Potter referred the court to the principle derived from Julius v Bishop of Oxford (1880) 5 App Cas 214 that, in certain circumstances, legislation may, by implication, couple a power with a duty to act in a certain way. Mr Potter then submitted that the incorporation of Article 8 into domestic law as a consequence of the coming into force of the Human Rights Act 1998 was sufficient to place the Department, a public body, under a duty to exercise the power under Article 110 of the 1986 Order. Mr Potter argued that the Department could not rely upon Article 8(2) given the particular circumstances of this case including the vulnerability of a compulsory detained mental patient and the importance to such a patient of the right to maintain maximum contact with family and friends especially since the transfer to Carstairs might be prolonged with an associated increase in the potential risk of deterioration caused by the disruption of such personal contact. On behalf of the Department Mr Maguire argued that Article 110 was clearly only a permissive power which it was for the representatives of the democratically constituted body, in this case the Department, to exercise in accordance with the relevant priorities and he referred to the contents of the affidavit sworn on behalf of the Department's Disability and Mental Health Unit by Mr Turner.
The clear first impression obtained from reading Article 110 of the Mental Health (Northern Ireland) Order 1986 is that it provides the Department with a permissive power rather than a statutory duty. In Julius v Bishop of Oxford (1880) 5 App Cas 214 the words to be construed were "it shall be lawful" and Earl Cairns LC said, at page 225:
"My Lords, the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require to be exercised."
In Re Baker (1890) 44 Chancery Division 262 at 270, after referring to Julius v Bishop of Oxford, Cotton LJ said:
"I think that great misconception is caused by saying that in some cases 'may' means 'must'. It never can mean 'must', so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a judge has a power given him by the word 'may', it becomes his duty to exercise it."
In the same case Cotton LJ emphasised the importance of looking at the object of the statute to see whether a duty to exercise the power is imposed. Furthermore, Section 38 of the Interpretation Act (Northern Ireland) 1954 includes the clear wording that:
"In an enactment passed or made after the commencement of this Act, the expression 'shall' shall be construed as imperative and the expression 'may' as permissive and empowering."
MacDermott LJ in Re: Croft's Application [1997] 457 in dealing with a similar argument that the word "may" in Section 26 of the Police Act (Northern Ireland) 1970 placed the Police Authority under a duty to provide pensions for reserve constables, concluded that the section conferred a discretion and he referred to the words of Lord Reid in Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997 at 1030:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act."
I am satisfied that in this case the policy and objects of the Order of 1986 would have required the Department to consider the exercise of its discretionary power under Article 110. The discretion in this case is one of a number of "miscellaneous functions of Department and Boards" contained within Part IX of the 1986 Order and the duty of the Department was to consider whether it appeared "to be necessary" to provide "special accommodation". It is clear from the Report of the Working Group and Mr Turner's affidavit that the need for an appropriate facility has been recognised for some time and that it is Department policy to exercise this power and provide a thirty-place Regional Secure Unit. The Department accepts that the development of such a facility is a priority and the relevant section of the Report of the Working Group confirms that it took into account those matters subsequently relied upon by the applicant as relevant to Article 8 of the Convention. The target for the provision of the facility is 2002 and the business plan is in preparation. The development is subject to competition for public funding by other priority developments but there is no evidence to indicate that the project has yet lost any priority. In the circumstances, I do not consider that the applicant has established any breach of her Article 8 rights in relation to the exercise of the Department's powers under Section 110 of the 1986 Order.
Domestic law
In relation to this aspect of the case Mr Potter relied upon procedural unfairness submitting, specifically, that the Department had neither given the applicant adequate notice of her transfer to Scotland nor provided her with a proper opportunity to make representations in relation thereto. No issue was taken with the assertion by Dr Browne that the applicant's situation had been discussed with her by medical staff on numerous occasions and that, in particular, he discussed the proposal to transfer her to the State Hospital with her on 8, 13, 15 and 23 March 2000. At paragraph 13 of his affidavit Dr Browne confirmed that the applicant was well aware of the decision to transfer her to Carstairs for a considerable period of time prior to the transfer and that it was his view that she had the insight to understand the nature and the purpose of the proposal to transfer. It was also common case that those made primarily responsible for the welfare of the applicant in accordance with the statutory scheme, namely, the nearest relative and the Mental Health Commission, had been notified in accordance with the provisions of the 1986 Order. No representations on behalf of the applicant were subsequently received from either source. Furthermore, Dr Browne, as the consultant psychiatrist responsible for the applicant's care, would have been and is aware of the effect that her transfer had upon the applicant's personal contacts. In such circumstances I am not satisfied that the applicant has established, upon the balance of probabilities, any failure to furnish her with adequate notice of her transfer or that she has been deprived of an opportunity to make any relevant representation.
Even if I was not so satisfied, the applicant has now been afforded the judicial review proceedings as an opportunity for putting before the court any representation that she might wish to make. The only representations put forward on behalf of the applicant are limited to the adverse effect of her transfer upon her personal contacts and, for the reasons which I have set out above, I am satisfied that, even after these had been taken into account, the decision to transfer could not have been impugned. In such circumstances, I would not have been prepared to exercise my discretion in favour of the applicant.
Accordingly, the application will be dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND