In the matter of an application by RM (a person under disability) by SM, his father and next friend for Judicial Review (Northern Ireland)

The statutory tests for compulsory detention for medical treatment under the Mental Health (Northern Ireland) Order 1986 and the Mental Health Act 1983 both require detention to be necessary.

A patient may remain liable to detention in hospital while living in the community on authorised leave. A review tribunal must assess the patient’s condition and treatment prospectively and holistically. It may consider proposed leave as a means of delivering treatment, managing risk and testing readiness for discharge.

Authorised leave supplies the necessary connection with a hospital through the patient’s continuing liability to recall. No separate requirement exists for a significant component of treatment to occur physically in hospital. That test has no statutory basis and should no longer be followed.

RM was a restricted patient detained under the Mental Health (Northern Ireland) Order 1986. A review tribunal refused his application for discharge after finding that his impairment continued to warrant detention for medical treatment, although he was shortly to move to community accommodation on authorised leave.

The High Court dismissed RM’s judicial review claim in [2021] NIQB 75. The Northern Ireland Court of Appeal allowed his appeal in [2022] NICA 35. It held that Northern Ireland imposed a stricter detention threshold than England and Wales and that proposed community leave should not influence whether detention in hospital remained warranted.

The issues were whether the two statutory schemes imposed different thresholds and whether proposed leave under article 15 was compatible with, and relevant to, a finding that detention in hospital for medical treatment remained necessary.

1. Appeal allowed unanimously. Lady Simler, with whom Lord Reed, Lord Sales, Lord Stephens and Lady Rose agreed, held that the Northern Ireland Court of Appeal had applied the wrong legal approach. The review tribunal’s decision was restored.

2. The tests for compulsory detention under the Mental Health (Northern Ireland) Order 1986 and the Mental Health Act 1983 are both tests of necessity. Section 3(2)(a) of the 1983 Act cannot be read without section 3(2)(c). Treatment in hospital must be appropriate, necessary for the patient’s health or safety or the protection of others, and unavailable unless the patient is detained. The different wording did not establish a less onerous English threshold. That conclusion was reinforced by the common law’s protection of liberty and article 5(1)(e) of the Convention.

3. A patient remains “liable to be detained” while the authority for detention remains effective, including during authorised leave under article 15. Leave does not discharge the patient. It may be revoked, and the patient may be recalled. Article 77(2) expressly contemplates that detention can remain necessary while leave is recommended to facilitate future discharge.

4. A tribunal considering discharge under articles 77 and 78 must make a prospective assessment. It must consider the patient’s condition, the whole course of treatment, future treatment needs and the least restrictive means of providing necessary treatment. The circumstances must be evaluated holistically. Proposed article 15 leave can and should be considered as part of a continuing programme for treatment, rehabilitation, risk management and testing readiness for discharge.

5. A planned period of community leave does not establish that detention is no longer warranted. For the purposes of articles 77 and 78, authorised leave can be regarded as detention in hospital for medical treatment. The continuing authority to detain and recall supplies a sufficient connection with a hospital.

6. The “significant component” test derived from earlier English decisions had no statutory basis. It was arbitrary, risked encouraging unnecessary hospital treatment and should no longer be followed. The tribunal was nevertheless entitled to find that RM’s community regime constituted medical treatment and that continued liability to detention and recall remained necessary.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and restored the review tribunal’s decision: [2024] UKSC 7.
2. Northern Ireland Court of Appeal: Allowed RM’s appeal and remitted his discharge application to the review tribunal for reconsideration: [2022] NICA 35.
3. High Court of Justice in Northern Ireland: Dismissed RM’s judicial review challenge and upheld the review tribunal’s refusal to discharge him: [2021] NIQB 75.
4. Review Tribunal: Refused discharge after finding that RM’s impairment warranted detention for treatment and that discharge would create a substantial likelihood of serious physical harm to others.