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Declaration of lack of capacity granted subject to Article 5 constraints

PT v The Official Solicitor to the Court of Judicature Northern Ireland [2017] NIFam 1

The Belfast Health and Social Care Trust (the Trust) sought from Court a declaration that the respondent, PT lacked capacity to consent to treatment, care and ancillary arrangements as set out in the care plan, a declaration that the care plan could lawfully be carried out in respect of PT as it was in his best interests, a declaration that in so far as the care plan deprived PT of his liberty, it could lawfully be carried out.

The respondent was born in 1993 and had significant physical health problems and a number of diagnoses.  From birth he was made a Ward of Court and later a Deemed Care Order and placed in care.  He was made the subject of guardianship in 2011.  PT’s psychiatrist noted that he had Global Developmental Delay since early childhood, which resulted in impairment of intelligence and social functioning which falls within the scope of severe mental impairment in the Mental Health (NI) Order 1986.  The Court held as follows:

1.     It found on the basis of the evidence of the respondent’s psychiatrist that he lacked capacity to litigate, to make decisions about his care and residence and whether to leave the home unescorted.

2.     A care plan which involves the deprivation of liberty of a person subject to guardianship, cannot be sanctioned under the Mental Health (NI) Order 1986 and can only be sanctioned by the High Court acting under its inherent jurisdiction.  The Court stated that legislation ought to address this gap.

3.     The care plan was in PT’s best interests having considered medical evidence and evidence provided by other professionals in making that decision.  Continuous supervision by his foster mother and locking of external doors of home and car doors were considered to be in PT’s best interests.

4.     In relation to Article 5 ECHR, the Court found that a Trust seeking to deprive a person of his liberty, must apply to court for an order before detention commences.  This was not done as the need for such an order only became apparent after recent case law.  The court order was limited to sanctioning deprivation of liberty which arises from the date of the order.

The court made an order, taking the above considerations into account.

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Mental Health