View source for ICLR Health Service Executive of Ireland v PA (2015) EWCOP 38, (2015) MHLO 107

''MENTAL DISORDER — Court of Protection — Recognition and enforcement of foreign orders — Orders relating to compulsory psychiatric placements  — Approach to be taken — Whether orders to be recognised and enforced  — Human Rights Act 1998, Sch 1, Pt I, art 5, 6, 8 — Mental Health Act 2005, ss 63, Sch 3, paras 4, 5, 19, 21, 22''

'''Health Service Executive of Ireland v PA and others'''

'''[2015] EWCOP 38;  [2015] WLR (D)  243'''

Ct of Protection :  Baker J:  3 June 2015

When considering applications to recognise and enforce compulsory psychiatric placements under Schedule 3 to the Mental Capacity Act 2005 the court should conduct a limited review to satisfy itself that the orders complied with the Convention for the Protection of Human Rights and Fundamental Freedoms in that (i) the criteria set out in Winterwerp v The Netherlands (1979) 2 EHRR 387, para 39 were met and (ii) that the individual's right to take proceedings to challenge the detention and the right to regular reviews thereafter was effective.

Baker J, sitting in the Court of Protection, so stated in a reserved judgment when granting the applications by the Health Service Executive of Ireland (“the HSE”) under section 63 of and Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce orders by the Irish High Court for the detention of three young persons (PA , PB, and PC, now aged 19, 18 and 20, respectively) at a special unit in Northampton. The Official Solicitor acted as advocate to the court; the Ministry of Justice and the Department of Health had declined to participate in the proceedings but a letter had been submitted on behalf of the departments setting out some views on the legal and policy issues arising in the proceedings.

'''BAKER J''' said that the proceedings raised a number of issues about the scope and interpretation of Schedule 3 of the 2005 Act. The overriding argument advanced by the HSE was that Schedule 3 had to be interpreted in its own terms since, if not, the Court of Protection would need to conduct its own wide-ranging review thus driving a coach and four through the scheme of the Hague Convention on the International Protection of Adults 2000 (Cm 5881). The Official Solicitor had identified six questions that needed to be answered before the court could recognise and enforce the orders of the Irish court: (1) whether PA, PB and PC were “adults” within the meaning of paragraph 4 of Schedule 3; (2) whether the provisions of the Irish orders were “protective measures” within the meaning paragraph 5; (3) whether the Irish orders were made on the grounds that PA and/or PB and/or PC were habitually resident in Ireland; (4) whether the procedural safeguards in paragraph 19(3) were met; (5) whether recognition of the Irish orders would be manifestly contrary to public policy; (6) and whether the Irish orders were inconsistent with a mandatory provision of English law. Although acknowledging that the Official Solicitor had properly raised a number of questions as to how English law applied for the purposes of implementing the relevant Irish orders, the HSE submitted that that was an intensely fact-specific issue; that in cases concerning deprivation of liberty, the court had to be satisfied whether it was an order that, in substance, contained the provisions required to ensure compliance with the obligations under article 5 of the Human Rights Convention; that the criteria in Winterwerp v The Netherlands (1979) 2 EHRR 387, para 39 were met; and that proceedings were in place for suitably frequent reviews to secure the individual’s rights under article 5.4.

In each of the three cases the declaration made by the Irish court, and the evidence put before that court, provided sufficient grounds to conclude that the individual was an adult (a person over 16) who, by reason of an impairment or insufficiency of their personal faculties, was not in the position to protect their interests for the purposes of Schedule 3; that finding was binding on the court by virtue of paragraph 21 of Schedule 3 to the 2005 Act.

Counsel for PA submitted that this court should take its own view on the questions of habitual residence and should conclude that PA was habitually resident here and therefore should decline to recognise and enforce the orders of the Irish court. In his Lordship’s judgment, by reason of paragraph 21 of Schedule 3 any finding of fact relied on when the measure was taken was conclusive, thus there was no power to challenge the finding made in the foreign court that the individual was habitually resident in that country, although the process by which the measure was ordered could be challenged (for example, if the individual was not given an opportunity to be heard) and the measure itself could be challenged (for example, if inconsistent with a mandatory provision of law of this country). Accordingly, the finding of the Irish court as to the habitual residence of PA, PB and PC could not be challenged. In any event, the finding of the Irish court as to the habitual residence of PA, PB and PC could not be challenged having been made in line with the clear authority of the Court of Justice of the European Union and the English courts. PA, PB and PC were all in England on a temporary basis for the purposes of treatment, each hoping to return to Ireland at the earliest opportunity, and their cases were subject to regular review by the Irish court.

Although paragraph 19(3) of Schedule 3 gave the court a discretionary power to refuse to recognise a protective measure if certain procedural safeguards were not met it was plain that the court only had a discretion to decline to recognise a foreign order where the court considered that (i) the measure taken was not urgent and (ii) the adult was not given the opportunity to be heard and (iii) that omission amounted to a breach of natural justice. Here, in all three cases, each individual, represented by a guardian ad litem and counsel instructed by the guardian, had been given an opportunity to be heard by the Irish court.

Paragraph 19(4) of Schedule 3 gave the court a further discretionary power to decline to recognise a measure in a foreign order if it thought (a) that recognition would be manifestly contrary to public policy, or (b) the measure would be inconsistent with a mandatory provision of the law of England and Wales, or (c) (which did not arise in the present cases) the measure was inconsistent with one subsequently taken or recognised, in England and Wales in relation to the adult. From observations made on behalf of the Ministry of Justice and the Department of Health the following general points of specific relevance to these cases could be drawn: (1) By including Schedule 3 in the 2005 Act Parliament had authorised a system of recognition and enforcement of foreign orders notwithstanding the fact that the approach of the foreign courts and laws to the issues might be different from that of the domestic court. Those differences might extend not only to the way in which the individual was treated but also to questions of jurisprudence and capacity. Thus the fact that there were provisions within the 2005 Act that appeared to conflict with the laws and procedures of the foreign state should not by itself lead to a refusal to recognise or enforce the foreign order; in such circumstances, it was only where the court concluded that recognition of the foreign measure would be manifestly contrary to public policy that the discretionary ground to refuse recognition would arise. Furthermore, in conducting the public policy review the court had always to bear in mind that the test was stringent and the bar set high. (2) There was likely to be a wide variety in the decisions made under foreign laws that were put forward for recognition under Schedule 3. Although no wide-ranging review as to the merits of the foreign measure was either necessary or appropriate, a limited review would always be required as indicated in Pellegrini v Italy (2001) 35 EHRR 44. That would be sufficient to identify any case where the content and form of the foreign measure, and the processes by which it was taken, were objectionable. (3) Most orders presented for recognition were likely to be of short duration, and/or in respect of persons whose capacity might fluctuate, and/or who were in receipt of a progressive form of treatment; as a result, in such cases there were likely to be repeated requests to scrutinise a succession of orders. Recognition and enforcement was likely to require close co-operation, not only between the medical and social care authorities of the two countries, but also between the courts and legal systems. The Hague Convention provided a mechanism using the central authorities but, pending ratification of the Convention, there might well be the need for direct communication between judges of the two jurisdictions.

As the definition of “adult” in paragraph 4 of Schedule 3 plainly extended to persons who might not be incapacitated within the meaning of section 2 of the 2005 Act, it followed that the court would be obliged to recognise and enforce orders of a foreign court in terms that could not be included in an order made under the domestic jurisdiction under the Act, subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy. Adopting the conclusion in In re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] COPLR Con Vol 893 that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) was not a decision governed by the best interests of the individual so that those paragraphs were not disapplied by section 1(5) of and paragraph 19(4)(b) of Schedule 3 to the 2005 Act, it followed that the court would be obliged to recognise and enforce a measure in a foreign court order even where, applying a best interests test, it would not be included in an order made under the domestic jurisdiction under the 2005 Act; further, that an order recognising and enforcing a foreign measure under Schedule 3 was not a welfare order as defined in section 16A(4)(b); and that the court would be obliged to recognise and enforce orders of a foreign court depriving an individual of his liberty in circumstances in which it would not able to do so under the domestic jurisdiction on the grounds that the individual was being treated or was treatable under the Mental Health Act 1983 as defined in Schedule 1A of the 2005 Act. Adopting that approach, recognition of the orders of the foreign court was not to be refused as being manifestly contrary to public policy within paragraph 19(4)(a) or (b).

'''Appearances:''' Henry Setright QC , Alexander Ruck Keene and Victoria Butler-Cole (instructed by Bindmans LLP) for the HSE; Helen Curtis (instructed by Miles & Ptrs LLP) for PA; Aswini Weereratne QC (instructed by Scott-Moncrieff & Associates Ltd) for PB; Annabel Lee (instructed by Capsticks LLP) for the mental health unit; David Rees (instructed byOfficial Solicitor ) as advocate to the court; PC did not appear and was not represented.

'''Reported by:''' Jeanette Burn, Barrister.

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