Case Law

Those carrying out duties and responsibilities under the Mental Health (Northern Ireland) Order 1986 must ensure that they do so in compliance with the legislation (Statute Law) and must also take account of relevant case law.

Case law can be defined as the body of law that has been established by the higher courts and provides practitioners with guidance and helpful clarification of legislation.

A selection of relevant case law is set out below. Please note, this is not exhaustive list. We recommend, if you have any specific queries in relation to any of the cases mentioned, that you read the case in more detail or alternatively seek assistance from your legal advisor.


Re JR 45 Application (2011) NIQB 17 – substantial risk of serious physical harm (psychological Vs physical)

Re AN Application by JR50 for Leave to Apply for Judicial Review Neutral Citation No:[2011] NIQB 43 TRE8176 - Limits on the power of guardianship

Re JR49 (Application for Judicial Review) (2011) NIQB 41 – The order authorising removal from a hospital in NI to a hospital in England pursuant to MHA 1983 s82 was quashed.

Re WEAL4810. An Application by JR18 (MENTAL HEALTH) 2007 for Judicial Review - Consent to Treatment

In the Matter of an Application by HM Secretary of State for Northern Ireland for Judicial Review. Neutral Citation no. [2006] NIQB 94 DEE B4732

SSNI, Re Judicial Review (Oswald Brown) (2006) NIQB 94 – It was lawful for the hunger-striking prisoner, who lacked capacity, to be given nutrition.

Re BS (2009) NIFam 5 STE7418 – A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place.

Magowan, Re Judicial Review (2009) NIQB 6 – Unsuccessful judicial review of failure of social services to make arrangements which would have allowed discharge from hospital.

X's Application (2008 – J Gillen) – Tribunal Decisions and reasons given. 'Containment' vs 'Detention'

X's Application No2: Judicial Review (2009) NIQB 2 – STE7349 – Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge

R v Warwick (2008) NICC 42 – As the Mental Health (Northern Ireland) Order 1986 does not allow detention for personality disorder, the risks in this case could only be addressed by the imposition of a discretionary life sentence (which would be followed by a transfer to Carstairs) rather than a hospital order.

McGrady, Re Application for Judicial Review (2003) NIQB 15 – (1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5.

Re: MW (Mental Health) Re Application for Judicial Review by (2008) NIQB WEAH4847 – role of medical member.

McGee, Re Judicial Review (2007) NICA 38 – The detention of the claimant under Article 7 of the Mental Health (NI) Order 1986 (similar to s5(2) MHA 1983) following a MHRT decision to discharge was lawful: (1) the authorities had formed the bona fide opinion that his mental state had since deteriorated; (2) Article 7 applied since the claimant had not divested himself of his in-patient status.

R v Francis (2008) NICA 6 – Both hospital orders to which the claimant was subject were quashed, on the basis that when sentenced he had not been suffering from severe mental impairment as defined in the Mental Health (Northern Ireland) Order 1986.

Re An Application by D H for Judicial Review (2004) NIQB WEAC5119 –Definition of Severe impairment of Intelligence (often informally referred to as the Mr Justice Weatherup Judgement).

Re An Application by N&WBHSST for Judicial Review (2003) – Severe Impairment of Intelligence and Social Functioning.

Re: Connor, Re An Application for Judicial Review [2004] NICA 45, CA – need to satisfy requirement of proportionality when limiting a fundamental right – Article 8 ECHR.

Other Relevant case law includes: Re: Nearest Relative

Re Winterwerp v Netherlands 6301/73 (1979) ECHR 4 – Except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority – this is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.

Re: 'Bournewood' HL v United Kingdom – (ECHR - 2004) - Deprivation of liberty of person lacking capacity.

R (IH) v SSDH (2001) EWHC Admin 1037 – Section 73 Mental Health Act 1983 is compatible with Article 5 ECHR: Deferred discharge is a provisional decision; the Tribunal can monitor progress and reconsider and amend the decision if appropriate.

R (E) v Bristol City Council (2005) EWHC 74 (Admin) – Section 11 and practicability of informing Nearest Relative.

Re Briscoe (habeas corpus) (1998) EWHC Admin 771 – "The essence of consultation is the communication of a genuine invitation to give advice and genuine consideration of that advice."Merely informing the NR of s3 admission would not suffice for the purposes of s11(4).

DP v South Tyneside DC (2011) Admin Court 14/7/11 – It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused.

CX v A Local Authority (2011) EWHC 1918 (Admin)A writ of habeas corpus was granted: (1) there had not been sufficiently informed consultation with the nearest relative before the s3 application was made; (2) the withdrawal of the nearest relative's objection was not full and effective, since it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. [Judgment originally published under a different name.]

Re D (mental patient: nearest relative) (1999) MHLR 181 – The approach to whether a relative "cares for" a patient so as to become their nearest relative by reason of s26 (4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker's decision as to who "appears to be" the nearest relative for the purposes of consultation under s11 (4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries). [MHLR.]

CV v South London and Maudsley NHS Foundation Trust (2010) EWHC 742 (Admin) – (1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5 (2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP (the applicant) to assume, based on a previous consultation,that the NR would not object. (4) Subsequent rectification under s15 (1) could not be relied upon in the circumstances of this case.

Ex Parte Smyth R v MHRT for South Thames Region (1998) – Nature & Degree

CM v DHNHSFT and Secretary of State (Justice) [2011] UKUT 129 (AAC) – Mental Health Review Tribunal, nature and degree must be read separately, currency of mental disorder.

Savage v South Essex Partnership NHS Foundation Trust (2008) UKHL 74 – Article 2 ECHR imposes, in addition to general obligations, a further "operational" obligation on health authorities and their hospital staff: if members of staff know or ought to know that a particular patient presents a real and immediate risk of suicide, they must do all that can reasonably be expected to prevent the patient from committing suicide.