Re Connor, an Application for Judicial Review [2004] NICA 45

This was an appeal by C (the Appellant) against the decision of the Irish High Court to dismiss her application for judicial review, which was directed at the Trust’s failure to permit her (as a person subject to a guardianship order) to live on a full-time basis with her husband.

C, aged 55, had received psychiatric treatment for a number of years.  It was believed that her brain damage was caused by chronic alcohol abuse. She had previously been detained under the Mental Health (Northern Ireland) Order 1986 and subject to a guardianship order.  Following revocation of the guardianship order, she went to live with her partner.  During this time she suffered numerous explained and unexplained injuries where her partner had failed to call for assistance; eventually C was again detained under the 1986 Order.  She challenged her detained status but her application was denied by the Appeals Tribunal and she remained a detained patient until she became subject to a guardianship order once more. C married her partner and was allowed to go on a short honeymoon with him, subject to supervision restrictions imposed under the order.  Following her return from honeymoon, C expressed a wish to live with her husband permanently.  A risk assessment was carried out indicating that C had little insight into the potential dangers to her health of a return home, and the Trust renewed the existing guardianship order. C began judicial review proceedings based on an alleged breach of articles 8 and 12 ECHR.  C was permitted to have 1 overnight visit per week with her husband and later granted longer periods of leave subject to her progress, which was improving.  C’s application for judicial review was refused.  The Trust continued to review C’s circumstances and the MHRT decided that she should remain subject to guardianship.

C appealed against this refusal, using human rights grounds.  The Trust accepted that they had interfered with C’s article 8 rights but that the decision to limit the overnight stays with her husband was taken in accordance with the law, and was both necessary to safeguard her health and proportionate in its pursuit of that aim. The court agreed and felt that the Trust had actively considered the reports prepared by the social workers on C’s situation though not explicitly making reference to her Convention rights.  The application was dismissed.  C appealed from the Irish High Court to the Court of Appeal.

The key issues for the Court of Appeal were identified as follows:

(1) were the restrictions necessary in a democratic society?
(2) were they proportionate?
(3) had the authority directed its mind to those tests?

In order to satisfy the proportionality test, the objective had to be sufficiently important to justify limiting a right.  Any restrictions imposed needed to be ‘rationally connected’ to that objective and the means used no more than necessary to accomplish the task.  It was for the State to justify such interference.  The court could not find any evidence that the Trust had recognised any interference with C’s article 8 rights in arriving at their decision.    There was a difference between considering whether interference of any article 8 right could be justified and what was merely ‘best’ for the patient.  The Trust had taken the latter approach. There had been no analysis by the Trust of the alternatives open to it and therefore it could not be said that the interference was proportionate.

The Trust should have considered C’s request to live permanently with her husband on the basis that its refusal constituted an interference with her article 8 rights.  And that such interference required to be justified and should have been confined to the minimum necessary to secure the objective of protecting C.  Appeal allowed and the Trust’s refusal to accede to C’s request was quashed.

Commentary

This case shows that there are powers within guardianship (albeit Northern Irish guardianship) well beyond those which are referred to explicitly in section 8 of the Mental Health Act 1983, albeit limited by the need to refer to human rights. This would be very important in relation to the debate about power to convey a person, and whether there is such a power only if that person is acquiescent, as opposed to non-compliant to the point of needing to be forced. In either case, however, it shows that the framework of guardianship gives a statutory basis for acting first, and then waiting to see if one is to be challenged. At common law, scenarios involving detention or very strongly invasive interventions in a person’s life under the doctrine of necessity, or where objection is made by a third party, seem to involve a principle of ‘ask the court first’, out of respect for the autonomy of a person – who whilst incapacitated, may be very adamantly non-compliant, or whose relatives are pressing coherent and forceful objections on the decision-maker against the proposed intervention….

The case points the way forward to using guardianship and human rights as a substitute for declaratory relief, building on the authority of Kent County Council, ex p Marston, in 1997. The powers in the N. Irish legislation are very similar to those in the UK’s mental health statute. The case also shows how judicial review of what has been done under guardianship, although, in theory, a merely supervisory remedy, can be used by an individual as a remedy outside that of the Mental Health Review Tribunal, to force authorities to think again about the exercise of their discretion in the right way, without their original error of law, second time around.

It is interesting to consider whether the thought process for a social worker, should be all that different, depending on whether one is acting under guardianship or under the common law, using the doctrine of necessity. Where the conduct amounts to a clear interference with human rights of a person under guardianship, the State should ask itself if the intervention is not merely justified, by reference to the degree of the person’s incapacity, and the positive human rights duty to protect the person’s health and welfare etc, but also necessary, in the sense of being the least interventionist thing that will work – whilst on a best interests decision making approach, the question would be ‘is this person incapacitated? and if so, is it necessary to do something at common law, to prevent deterioration in their welfare?’ and then ‘is this proposal the least interventionist step we can take that will work?’ We are not sure we can see a difference, personally, in which case we would question whether the Court was really right to put so much emphasis on the need for the authority to have gone through human rights hoops, explicitly. Human rights principles must surely affect the State’s decision making at common law, just as much as they bite on the exercise of discretion under statute.

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