JMcA v The Belfast Health and Social Care Trust [2014] NICA 37 (Northern Ireland Court of Appeal (Morgan LCJ, Coghlin LJ and Horner J))

At first instance [2013] NIQB 77, Treacy J held that guardianship contained an implicit power to prevent the person leaving their residence. In our comment on this case (which does not appear in the COP Cases Online Database) we expressed surprise at the tenor of that decision which has now been overturned by the Court of Appeal in Northern Ireland. It held that a guardianship order does not provide any mechanism for the imposition of any restriction on the entitlement of the person to leave the home at which they are residing for incidental social or other purposes. The Court identified a lacuna in the law and, with reference to DOLS, stated, “It is clear that urgent consideration should now be given to the implementation of similar legislation in this jurisdiction.

In this regard, it should be noted that the draft Mental Capacity Bill that has just been issued for consultation in Northern Ireland includes provisions for the authorisations of deprivation of liberty in care homes and hospitals in a fashion that is modelled upon Schedule A1 to the MCA 2005, albeit with applications being made to a 3 member panel convened by the relevant Health and Social Care Trust.