Alex RKIn Re RM Application for Judicial Review (Northern Ireland) [2024] UKSC 7, the provisions of the Mental Health Order (Northern Ireland) 1986 came under scrutiny, shedding light at the same time on the operation of s.17 Mental Health Act 1983 in England & Wales.
In 2018 the Supreme Court held in Re MM that conditional discharge under the 1983 Act could not authorise deprivation of liberty in the community. In consequence, and in both jurisdictions, the use of extended periods of authorised leave of absence as a tool for enabling detained patients to continue their rehabilitation in a community setting where appropriate has assumed greater clinical importance.
RM, a restricted patient in Northern Ireland, had sought discharge before the Mental Health Review Tribunal but had been unsuccessful. The Tribunal had accepted the recommendation of his responsible medical officer that his long term leave of absence under article 15 of the 1986 Order (the equivalent of s.17 MHA 1983) would shortly be authorised, and he would move to a community-based setting as a means of transition from secure conditions to ultimate discharge. The Tribunal considered that as a patient subject to leave of absence, RM would nonetheless remain a patient detained in hospital for treatment for the purposes of article 77(1)(a) of the 1986 Order (the equivalent of s.72 MHA 1983). RM challenged this decision by way of judicial review, arguing that, as a matter of law, he should have been discharged unless “a significant component” of his medical treatment was being administered or was to take place within a hospital or equivalent health care facility. Since no treatment in hospital was envisaged in RM’s case, he argued that should have been discharged from hospital and the only remaining issue was whether the discharge should be absolute or conditional.
The reference to “significant component” was an allusion to the situation in England where the courts had reconciled full-time leave of absence under s.17 MHA 1983 with the need for continued detention for treatment in a hospital by adopting a test that permitted leave of absence where a “significant component” of the treatment plan for the patient was treatment in a hospital: see, in particular, R (on the application of DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin) (Wilson J) and R(CS) v Mental Health Review Tribunal [2004] EWHC (Admin) 2958.
While it was accepted on RM’s behalf that the significant component test for the connection with a hospital could be gossamer thin, he argued that, on the evidence in this case, where no medical treatment of any kind was taking place at a hospital, nor was any envisaged at any time in future, that connection was not made out.
The High Court upheld the Tribunal’s decision. RM then took matters to the Northern Ireland Court of Appeal, which allowed his appeal. It considered that article 15 “cannot and should not be used as a mechanism for providing legitimacy for what amounts to detention in the community when the grounds for detention in hospital for medical treatment no longer exist and it cannot and should not be seen as a means of avoiding the difficulties presented by the MM decision in respect of the conditions which can be imposed upon a patient who is subject to a conditional discharge” (paragraph 40 of the NICA decision).
The Department of Justice and the Tribunal appealed.
Before the Supreme Court two questions arose. The first was whether the NICA was justified in drawing distinctions between the 1986 Order and the MHA 1983 so as to support the conclusion that authorities from courts in England and Wales could not be relied on to construe the requirement of detention in hospital for medical treatment. The Supreme Court had little hesitation in finding that the differences in wording did not bear the weight placed upon them by the NICA, such that English authorities could be relevant.
The second question – of relevance both in Northern Ireland and, by analogy, in England & Wales – was set out by Lady Simler, giving the judgment of the Supreme Court, at paragraph 10 as being:
whether the grant of leave of absence under article 15 of the 1986 Order is inconsistent with a conclusion that a patient still satisfies the test for detention in hospital for medical treatment and should have no bearing on the decision whether detention for medical treatment is warranted.
If so, Lady Simler continued,
such leave which may form an important and valuable part of a detained patient’s treatment plan, that can and frequently does support a safe transition from the institutional setting of a hospital to a less secure, less institutionalised setting in the community, as part of the continuum from detention to discharge, is considerably restricted in its availability.
Having examined the statutory wording of the 1986 Order, the clear conclusion of the Supreme Court (at paragraph 79) was that a period of leave under article 15 of the 1986 order could be regarded as detention in hospital for medical treatment, so that the Tribunal had been correct to regard RM as continuing to be regarded as a detained patient. Lady Simler continued at paragraph 80 that:
The NICA’s observation that article 15 leave is not to be used to legitimise detention in the community when the grounds for detention in hospital for medical treatment no longer exist or for avoiding the difficulties presented by MM is unfortunate. While I agree that article 15 leave should not be used illegitimately, that is not what the review tribunal did in this case, and I see no justification for this implied criticism. To the contrary, the proposed treatment plan included a regime of care, support, rehabilitation, and supervision that constituted “a significant amount of medical supervision and treatment” on the review tribunal’s findings. Initially the medical supervision and treatment was planned to take place in the community in circumstances that were more restrictive than those then imposed on RM in hospital. There was uncertainty as to how RM would cope with leave of absence. It was evident from Dr Devine’s evidence that the package of care, treatment, support and supervision that would be in place in the community would be tested by the leave of absence and that it would have to be developed and adapted to meet RM’s needs. This was “medical treatment” under the 1986 Order. The review tribunal also concluded that it was necessary for the treatment to continue while RM met the statutory conditions for detention and remained liable to recall from leave. In other words, the review tribunal’s conclusions meant that even when on leave, RM has a hospital at which he is detained when not on leave.
Importantly, however, Lady Simler noted that, in agreement with the NICA (but for different reasons), she did:
not regard the “significant component” test as necessary, or indeed helpful, when deciding whether a patient’s ongoing treatment is treatment in a hospital. The test has no statutory basis and is a gloss on the statutory words. I agree with the submission on behalf of RM that it risks unnecessary treatment being devised in an effort to ensure that the test is met and is arbitrary and subject to happenstance. For these reasons, it should no longer be followed. As explained, even when on authorised article 15 leave, the patient has a hospital at which he or she is detained when not on leave, and article 15 (with the liability to recall in article 15(5)) itself provides a sufficient connection to a hospital for a patient who is liable to be detained.
The appeal was therefore allowed, and the decision of the review tribunal restored that the statutory test for detention in hospital for medical treatment was met notwithstanding the responsible medical officer’s decision that RM should reside on a long-term basis in a community setting, initially on article 15 leave.
Comment
One oddity of this case is that the Supreme Court made no reference to the decision of Lieven J in Cumbria, Northumberland Tyne & Wear NHS Foundation Trust & Anor v EG [2021] EWHC 2990 (Fam), in which the operation of long-term s.17 leave with no medical treatment taking place in hospital was considered in considerable detail. It is perhaps because this case was decided at the same time as RM’s case was going through the Northern Ireland courts. Lieven J had reached the conclusion that EG could be maintained in the community in such a situation, albeit by having to read the provisions of the MHA through the prism of s.3 HRA 1998.
By contrast, the Supreme Court here reached the same conclusion through a rather more direct route, dismissing the relevance of the ‘significant component’ test altogether. The observations of Lady Simler in relation to the test are just as applicable to s.17 MHA 1983 as they are to the 1986 order – something of which she was no doubt aware because (although only referred to indirectly), the English Department of Health and Social Care and Ministry of Justice had intervened in RM’s case.
The observations of Lady Simler therefore reinforce the ability to use long-term s.17 MHA 1983 as a work-around for situations where a restricted patient cannot be discharged into the community other than under circumstances giving rise to a deprivation of liberty. However, the use of s.17 leave in this way is sufficiently problematic (for instance as regards the continued operation of Part 4 MHA 1983 and the implications for s.117 aftercare) that it is to be hoped that the primary legislation can be amended in due course in England & Wales so that the recourse does not have to be had to it, and s.17 can be returned to its proper, more limited, purpose.
A final irony of the case is that it concerns legislation that should no longer be in force, the Mental Capacity Act (Northern Ireland) 2016 having been supposed to have swept away standalone mental health legislation in favour of a capacity based-framework applicable to both mental and physical health matters. Unfortunately, and causing considerable ongoing difficulties, the 2016 Act is only partially in force, and the 1986 Order remains operative in respect of those with mental health conditions warranting admission and treatment.
