Court of Protection Hub
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About & Advertise

Cases

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

6/8/2015

 
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





Comments are closed.
    Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available. 

    Support the Hub
    This site is free to access but if you find it useful then please consider a contribution by way of support for our work.  Click here to contribute.

    Sign up for our free email alert

    We do not share your details with any third parties and you can unsubscribe at  any time

    RSS Feed


    More from Bath Publishing


    Browse

    Categories

    All
    Advance Decisions
    Assessments
    Best Interests
    Capacity
    Committal
    Contact
    Contempt Of Court
    Coronavirus
    Costs
    Deputies
    Disclosure
    DNA Testing
    DOLs
    End Of Life Decisions
    Fact Finding
    Finance
    Gifts
    Habitual Residence
    Human Rights
    Inherent Jurisdiction
    Injunctions
    International
    Jurisdiction
    LPA/EPA
    LPAs
    Medical Treatment
    Personal Welfare
    Practice & Procedure
    Pregnancy & Contraception
    Property
    Publicity
    Religion
    Reporting
    Residence
    Settlement
    Sexual Relations
    Statutory Will
    Sterilisation And Termination
    Travel

    Archives

    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    February 2017
    October 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015



Picture
This site is published by Bath Publishing Limited
www.bathpublishing.com
Manage your email preferences
Read the Bath Publishing Privacy Policy
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About & Advertise