The Health Service Executive of Ireland v CNWL [2015] EWCOP 48

This case concerns an application under section 63, and Schedule 3 of the Mental Capacity Act 2005 (‘the Act’) by the Health Service Executive of Ireland (‘HSE’) for recognising and enforcing orders made by the Irish Court in relation to P.  In the recent judgment of The Health Service Executive of Ireland v PA and Others [2015] EWCOP 38 the court considered the law relating to recognition and enforcement of foreign orders. 

This case concerns the status of P within these applications before the Court of Protection and whether or not they should be joined as a party under applications such as these.

The Facts
P is a 21 year old women with a diagnosis of severe anorexia nervosa. P was not a party nor represented at the hearing on 19th June 2015 and the court made an order in line with the HSE’s application and P was moved from Ireland to a hospital unit in the England.

Orders had been made by the Irish court and P had been represented by her father as Guardian ad Litem the court having found that P lacked capacity to conduct the proceedings. After several admissions to units in Ireland the HSE identified a placement for P in a specialist unit in England and that this would give P one last opportunity to get the treatment that she urgently needed as all avenues in Ireland had been exhausted. The order by the Irish Court was time limited and overseen by the Irish Court.

The application for recognition and enforcement was urgent and in view of this P would not be made a party to the proceedings but that if P indicated a wish to challenge any aspect of the order then the HSE would take steps to ensure the matter would be returned to the Court of Protection forthwith for further directions. The HSE stated that the issue of P’s status as a party to the proceedings should not act as a bar to immediate recognition and enforcement. The Court granted the application but the matter of P’s status in the proceedings should be considered further.

Arguments for determination
The HSE argued that joining P was neither compulsory nor necessary on the facts of the case within the limited review that the court needed to take in these proceedings. Alternatively under Rule 3A it is for the court to decide how P is to participate in these proceedings (paragraphs 22 and 23). 

The OS stated that the court was under a duty under Rule 3A to ensure P’s voice was properly before the court. Although the review was limited  it is necessary to ensure that this country’s own obligations under Articles 5, 6 and 8 of ECHR are met and an appropriate process is adopted for P to participate in proceedings and this can be achieved by joining P. The OS also stated that a direction short of joining P could fall foul of the Court of Appeal in Re X [2015] EWCA Civ 599, paragraph 100.

There were concerns whether P’s father who had represented P in the Irish Court had put P’s views fully as he would have wanted his daughter to be treated.

The Law
The court referred to its summary of the law in The Health Service Executive of Ireland v PA and Others [2015] EWCOP 38 relating to recognition and enforcement of orders.  

The court also considered the legal developments regarding the issue of joining a patient. The court considered the Court of Appeal case in Re X [2015] EWCA Civ 599 concerning the President’s guidance in relation to Deprivation of Liberty cases and the introduction of the new COP Rule 3A. The Court of Appeal concluded that the President had no jurisdiction to determine the issues that it did and therefore the Court of Appeal had no jurisdiction to hear the appeal.

Applications for recognition and enforcement were not mentioned in the Court of Appeal.

The court also referred to the new Rule 3A and Practice Direction 2A (paragraphs 20 to 21).
 
Decision
Where P was made a party and represented in the proceedings before the foreign court it is not ‘indispensable’ for P to be made a party for an application for recognition and enforcement given the limited scope of enquiry. The flexibility in the new Rule 3A was well suited to applications for recognition and enforcement.

Having read the transcript of the Irish Court at the hearing in November 2014 where P’s father was appointed guardian ad litem and having looked at the evidence as to P’s wishes and feelings, the court found that the evidence came principally from the reports of P’s treating doctors. The court therefore sought clarification from the Irish Court how P’s wishes and feelings were given, and currently are being given, the opportunity to be heard on the issue of deprivation of her liberty and therefore adjourned the hearing.

Having invited the OS to act as advocate to the court P’s interest can properly be secured by inviting the OS to continue that role at the next hearing and this lies within the scope of rule 3A(2), in particular (e).

The court amended its previous open ended order of recognition and enforcement and limited the application up to 29th July 2015 but with the HSE to have liberty to apply for an extension.

Discussion
The court stated that it was extremely unwise to ignore what was said in the Court of Appeal even if the judgment was not binding. The court distinguished what was said in the Court of Appeal as they were not asked to consider applications under Schedule 3.  The court accepted that there were clear principles on the importance to ensuring P’s voice is heard.

The court considered it beneficial to applications such as these to have an appointment of an accredited legal representative and welcomed the introduction of such a scheme, and hoped it would be established swiftly.

The court stated that where there were concerns regarding whether or not the P was properly heard it should raise those concerns with the court of origin rather than simply refuse recognition.

It will be interesting to see if there will be any guidance relating to the issue of joining P in applications for recognition and enforcement in the light of the case of Re MOD & Ors [2015] EWCOP 47 whereby the matter of procedure in relation to deprivation of liberty cases has been sent to the Vice President of the Court of Protection for urgent review in the light of the Court of Appeal’s comments in Re X.

Read the full text of the judgment on Bailii