A restricted patient detained under the Mental Health (Northern Ireland) Order 1986 challenged his continued detention when his treatment plan involved community-based leave of absence. The Supreme Court held that leave of absence under article 15 is not inconsistent with continued detention for hospital treatment, restoring the review tribunal’s decision.
Background
RM is a restricted patient detained at Muckamore Abbey Hospital under Part III of the Mental Health (Northern Ireland) Order 1986, following a finding by the Belfast Crown Court that he had committed unlawful acts but was unfit to be tried. He has a significant intellectual disability and severe impairment of social functioning associated with abnormally aggressive behaviour. An order was made admitting him to hospital for medical treatment under article 50A(2)(a) with a restriction order direction without limit of time.
RM applied for discharge from detention on 16 January 2019. At a hearing on 16 February 2021, his responsible medical officer, Dr Devine, recommended that RM be granted long-term leave of absence under article 15 of the 1986 Order to reside in a community-based setting as part of his ongoing treatment and rehabilitation. The review tribunal accepted this evidence and refused to order RM’s discharge, concluding that his severe mental impairment remained of a nature or degree warranting detention in hospital for medical treatment, even though the treatment plan envisaged RM moving to the community on article 15 leave.
Colton J in the High Court upheld the tribunal’s decision. The Northern Ireland Court of Appeal (NICA) allowed RM’s appeal, holding that the statutory test for detention differed between Northern Ireland and England and Wales, and that the prospect of article 15 leave should have no bearing on the tribunal’s assessment of whether detention for medical treatment was warranted.
The Issue(s)
Two principal questions arose before the Supreme Court:
1. Whether the threshold test for compulsory detention differs between the 1986 Order and the 1983 Act
The NICA had held that the word ‘warrants’ in article 12(1)(a) of the 1986 Order imported a stricter necessity test than the ‘appropriateness’ test in section 3(2)(a) of the Mental Health Act 1983, meaning that English and Welsh authorities could not be relied upon in Northern Ireland.
2. Whether leave of absence under article 15 is inconsistent with continued detention for treatment in hospital
The NICA held that the prospect of article 15 leave should have no bearing on the tribunal’s decision as to whether the patient’s mental disorder warrants detention in hospital for medical treatment.
The Court’s Reasoning
The threshold test is the same in both jurisdictions
Lady Simler, delivering the unanimous judgment, held that the NICA was wrong to find a material difference between the two legislative schemes. She noted that the single compressed condition in article 12(1)(a) of the 1986 Order is disaggregated in the 1983 Act across sections 3(2)(a) and 3(2)(c). Section 3(2)(c) requires that detention be ‘necessary’ for the patient’s health or safety or the protection of others, and that treatment cannot be provided unless the patient is detained. The NICA had overlooked this critical provision:
While different language is used in the parallel provisions of the two legislative schemes, the word ‘appropriate’, in context, plainly means that it will only ever be appropriate to compulsorily detain in hospital if it is necessary to do so. The test for compulsory detention under the 1983 Act is the same necessity test that applies under the 1986 Order.
Lady Simler further noted that the legislative history showed the words ‘warrants’, ‘necessary’, and ‘makes it appropriate’ were used interchangeably. Article 5(1)(e) ECHR also requires the deprivation of liberty to be lawful and free from arbitrariness, reinforcing the necessity standard in both schemes.
Leave of absence is not inconsistent with continued detention
On the second and central question, the Supreme Court held that the NICA was wrong to conclude that article 15 leave is inherently inconsistent with a finding that detention for hospital treatment remains warranted. Lady Simler observed that the statutory scheme itself expressly contemplates this possibility. Article 77(2)(a) permits a tribunal, where satisfied that the statutory conditions for detention remain met, to recommend leave of absence ‘with a view to facilitating his discharge on a future date’:
The clear implication of these provisions is that the legislative scheme permits a review tribunal to decide that a civil patient’s continued detention is necessary (because the statutory conditions are still met) and simultaneously consider that article 15 leave should be granted. The further implication is that there is no inconsistency between detention for treatment in hospital and authorised leave for treatment in the community.
Critically, the Court emphasised that a patient on article 15 leave remains ‘liable to be detained’ and retains a hospital to which they may be recalled at any time. Leave of absence is part of a continuing treatment programme during which the need for hospital treatment is constantly reassessed:
Importantly, the fact that article 15 leave is planned does not necessarily mean that the patient’s mental disorder no longer warrants detention in hospital for treatment. Treatment received in detention may have suppressed symptoms or behaviours deriving from the mental disorder. Article 15 leave is simply a means of managing risk and testing whether the treatment so far provided to the patient (and/or any ongoing medication regime to be maintained outside hospital) has sufficiently alleviated the disorder and/or its symptoms so that the medical disorder no longer necessitates detention.
Rejection of the ‘significant component’ test
While restoring the tribunal’s decision, the Supreme Court also departed from the ‘significant component’ test established in the English cases of DR and CS, which had required a significant component of the patient’s treatment plan to involve treatment in hospital. Lady Simler held:
I do 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.
Instead, the Court held that article 15 itself, with its liability to recall under article 15(5), provides a sufficient connection to a hospital for a patient who is liable to be detained.
Practical Significance
This judgment is of considerable importance for the management and rehabilitation of restricted patients in both Northern Ireland and England and Wales. It confirms that the threshold test for compulsory detention is the same necessity test under both the 1986 Order and the 1983 Act, enabling cross-jurisdictional reliance on case law where appropriate. It establishes that authorised leave of absence is not inherently inconsistent with continued detention for hospital treatment, thereby preserving an essential therapeutic tool for managing the transition of detained patients from secure hospital settings into the community. The decision is particularly significant following Secretary of State for Justice v MM [2018] UKSC 60, which prohibited conditions amounting to deprivation of liberty on conditional discharge, because it confirms the continued availability of article 15 leave (and section 17 leave in England and Wales) as an alternative mechanism for supervised community rehabilitation while a patient remains formally detained. The Court’s rejection of the ‘significant component’ test removes an unhelpful judicial gloss that risked distorting clinical treatment planning.
Verdict: The Supreme Court unanimously allowed the appeal, restoring the decision of the review tribunal 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 on article 15 leave of absence.
