Re RM Application for Judicial Review Northern Ireland [2024] UKSC 7 was about article 15 of the Mental Health (Northern Ireland) Order 1986, the equivalent to s17 Mental Health Act 1983 in England & Wales. It directly contradicts English High Court and Upper Tribunal decisions about s17. I think the First-tier Tribunal (and the MHRT for Wales) should follow the Supreme Court decision on article 15 instead of the decisions on s17. Is that right? There’s some background at Leave of absence - Mental Health Law Online.
I think that just as the NI courts only look upon English cases ‘persuasive’ arguments of another jurisdiction (which, as in this case, they are not bound to follow), it works the same way with English courts and NI decisions. But the case does surely open up an argument to challenge English caselaw should the circumstances arise, on the grounds of arguing that the NI decision might be considered as potentially persuasive approach from their jurisdiction. The exact parallel case in England wouldn’t arise in my reading of RM, because in part the NI courts had previously said that long-term leave should not be used “as a means of avoiding the difficulties presented by the MM case” (which as a Supreme Court decision does have effect in NI), but in England and Wales exactly the opposite approach has been accepted as the pragmatic response to MM. So to some degree, has England and Wales already anticipated, in practice, something of the NI approach? I’m not sure!
To my eyes it doesn’t seem to change a whole lot re: long-term Section 17, unless I’m missing something it amounts to “when I eat at a restaurant I eat in a restaurant, even if my meal doesn’t satisfy a significant component of my hunger”.