Law Centre (NI) 2012

1. INTRODUCTION TO JUDICIAL REVIEWSeán McParland – LC(NI) Mental Health Legal UnitPILS Stakeholder Forum – Tuesday 4th September 2012 Law Centre (NI) 2012

2. Aims & Objectives To briefly discuss the anatomy of a Judicial Review (JR) from start to finish Use an actual JR case as example Presentation is practically focused It is not very technical

3. JR 45 [2011] NIQB 17 Challenge to a Mental Health Review Tribunal [MHRT] decision On ground that MHRT incorrectly construed and applied the material provisions of the Mental Health (Northern Ireland) Order 1986. In particular the statutory test of ‘substantial likelihood of serious physical harm’ {Art. 77 (1)(B)}

4. Origins of JR cases Have a strategy with focus on 2/3 issues Outreach and Networking with others Trends can arise out of normal casework Be alert to unexpected JR opportunity Wait until right case comes along

5. Funding Legal Aid Trade Union/ Charitable organisation Pro – Bono legal team PILS Protective Costs Order

6. Getting started.. 3 month time limit – but may be ongoing breach. May need to engineer a decision that is capable of JR. Pre-action protocol letter Get a reply from proposed Respondent in correct form Get Counsel involved to advise on merits and draft pleadings

7. Practice points It need not be the Applicant who does affidavit if mainly legal issues involved. Make sure the relevant practice directions from Court are complied with and the correct number of documents are lodged and served. Liaise closely with proposed Respondent’s Solicitor. It is Applicant’s responsibility to have paperwork in order, so ensure that their pagination etc. is correct.

8. Gather evidence Primarily documents from the parties to the action. Other organisations may have an interest: can become intervenor, do an affidavit or simply provide information Journalists/ Media Policy units: need to communicate internally Expert witnesses: evidence adduced by affidavit. Rarely are witnesses examined in Court.

9. Leave Hearing ‘ If a quick perusal of available material discloses an arguable case in favour of granting the applicant the relief claimed..[the Court] ought to give him leave to apply for that relief.’ IRC –V- National Federation of Self Employed and Small Businesses Ltd. [1982] AC 617 at 643 Often the Order 53 statement will be amended If granted, applicant serves Notice of Motion within 14 days May need to arrange funding for substantial hearing

10. Substantial Hearing Organic Process: Things will develop and change as case progresses. New documents may emerge. If the Applicant gets what she wanted mid-stream, the matter may still be worthy of pursuit. Public interest could defeat the Salem principle that the issue is now academic. The Decision: the judgment may go beyond what was originally sought. The judge may expound on other issues which may prove useful.

11. If JR not granted Only 5% of JR’s are successful Go through the judgment forensically for areas of challenge. Could be that whilst Applicant lost, the principle is established. Wider Policy concerns may drive need to appeal Can appeal to the Court of Appeal (with permission) Could be that room for a factually better case to progress the matter.

12. Some content of JR45 judgment Substantial Likelihood is defined as a ‘Real Probability’ ‘Serious physical harm’: is something more than trivial or minor Tribunals cannot seek to validate their written reasons by averring to additional reasoning in subsequent avidavits. If someone expresses themselves to be ‘afraid’, it won’t meet the test. More detail is required People at risk should be identified

13. Impact of JR 45 Anecdotal evidence indicates that it has had a positive impact on MHRT decisions. Since March 2011, it has been referred to in 50% of MHRT written reasons that Derry LC(NI) has been involved in. In the same period the percentage of discharges in LC(NI) heard cases increased from 37% to 50%. Healthcare professionals are aware of the case and it informs their decisions at admission stage.