Delivering judgment for the High Court of Northern Ireland in November, Mr Justice Michael Humphreys explained that “LT has genuinely held understandable concerns about the effect a transfer to a nursing home may have on her elderly and frail mother. However, the evidence presented to me is clear and unequivocal. Such a transfer is manifestly in BT’s best interests.”

Michael Potter appeared for the plaintiff instructed by the Directorate of Legal Services, Timothy Ritchie appeared for the first defendant instructed by the Official Solicitor, and the second defendant appeared as a litigant in person.

Background

The first defendant was an 86-year-old woman who was admitted to hospital in March 2025 suffering from renal failure and had a limited life expectancy. The second defendant was the daughter of the first defendant, and both defendants opposed her discharge from hospital.

The plaintiff alleged that the first defendant had no ongoing acute medical need and no longer required inpatient hospital care. 

The plaintiff sought declarations that the first defendant lacked decision-making capacity and that it was entitled to take the necessary steps to transfer her to a suitable facility and to provide such care and treatment as was in her best interests.

The court appointed the Official Solicitor as a guardian ad litem to represent the interests of the first defendant during the litigation.

Evidence and submissions

Mr Justice Humphreys considered a report from a consultant psychiatrist which identified that the first defendant was suffering with impairments in her memory, attention, social cognition and language, and that she was confused, likely due to dementia.

The report concluded that the first defendant did not have capacity to make a decision on her ongoing healthcare and her discharge and placement in a care facility, where she was unable to understand the information relevant to the decision, could neither process nor retain information for long enough to make the necessary decision, and was unable to appreciate the relevance of information imparted to her, instead contending that she was entitled to open-ended hospital care as she paid her taxes all her life.

A report from a senior social worker recounted how, since March 2025, meetings held with the defendants with the aim of attempting to agree a discharge pathway had proved unsuccessful and both defendants took the view that the first defendant should remain in hospital indefinitely.

The report further noted the concerns of the plaintiff, being that the first defendant did not require inpatient care and was best suited to nursing home placement, that she was at risk of hospital acquired infection, and in relation to the significant pressure on hospital beds for acutely ill patients.

The Official Solicitor’s report noted that during her discussions with the first defendant, the first defendant had expressed that she did not want to go to a nursing home as she did not want to pay for it. The report also recorded that during discussions with the second defendant, she stated that it was disgraceful that an elderly woman would be “put out” of the hospital.

In her submissions, the second defendant ventilated her concerns regarding the transfer of her mother out of the hospital and the potential harm that could cause, alleging that if she were to die as a result of the move, this would constitute corporate manslaughter on part of the Trust. The second defendant relied upon the right to life and the prohibition on torture, inhuman and degrading treatment in the European Convention on Human Rights (ECHR).

The High Court

Mr Justice Humphreys noted that the application before him had been brought pursuant to the inherent jurisdiction of the court to make decisions on behalf of incapacitated adults, in light of the “continuing failure” to bring Part 6 of the Mental Capacity Act (Northern Ireland) 2016 into force.

Having considered the relevant legal principles concerning the court’s jurisdiction as set out in Re SA [2005] EWHC 2942, and the issue of capacity having regard to Re MB (Medical Treatment) [1997] 2 FLR 426, the relevant provisions of the 2016 Act and the consultant psychiatrist’s report, the judge determined that the first defendant lacked capacity to make decisions about her residence and healthcare.

In those circumstances, the court was satisfied that it was empowered to make such decisions on the first defendant’s behalf in accordance with her best interests. 

The court highlighted that the second defendant held understandable concerns but had failed to adduce evidence to the effect that a structured move from hospital to a nursing home would create a risk to the life of the first defendant or otherwise subject her to the type of treatment forbidden by the ECHR.

Mr Justice Humphreys explained that the evidence before the court was “clear and unequivocal” and that the proposed transfer would be manifestly in the first defendant’s best interests where she did not require inpatient hospital treatment, would obtain an appropriate level of care in a nursing home, where there was no evidence that the transfer would cause harm, where she was at risk of hospital acquired infection, and in light of the pressures on hospital beds which would be exacerbated in the winter months.

Noting that the first defendant’s rights under Articles 2, 3 and 5 ECHR were not engaged on the evidence before the court, the High Court found that while the proposal to move the first defendant against her will and that of her daughter represented an interference with her privacy and family life under Article 8 ECHR, “such interference is entirely necessary and proportionate, given my findings in relation to BT’s best interests”.

Conclusion

Accordingly, the High Court made the declarations sought by the plaintiff.

A Health and Social Care Trust v BT & Anor [2025] NIFam 14