The challenge
This case, supported by the Commissioner for Older People for NI, challenges the Department of Health’s policy on continuing healthcare.
The NIHRC was granted leave to intervene by way of written submissions before the High Court. The NIHRC did not seek to intervene at the Court of Appeal as human rights arguments did not form part of the grounds for appeal.
Human rights engaged
The NIHRC’s submissions focused on the application of A1P1 ECHR as interpreted in light of the UN Covenant on Economic, Social and Cultural Rights and UN Convention on the Rights of Persons with Disabilities.
Outcome
The High Court held that the Department of Health’s Continuing Health Care Policy 2021 was in breach of s75 of the Northern Ireland Act 1998 and the failure to issue guidance on the 2010 policy was unlawful. The Trust’s refusal decision was also quashed.
The Court of Appeal allowed the Department of Health’s appeal. It held that the 2010 policy was unlawful as it exceeded the Department’s statutory powers. However, the failure to issue guidance was not irrational and that judicial review is not available for breaches of s.75 Northern Ireland Act 1998.
Permission to appeal to the UK Supreme Court was refused in June 2025.
Judgments
High Court Re McMinnis and COPNI [2023] NIKB 72
Court of Appeal Re McMinnis [2024] NICA 77