The Health Service Executive of Ireland v PA & Ors [2015] EWCOP 38

This case concerns applications 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 three applications for three different Patients (‘P1, P2, and P3’). The court listed all three cases together. 

The court considered legal argument and determined the relevant legal principles relating to such orders.

The Facts
P1
P1 is 18 years old. After a troubled background and several placements in foster care he was made subject to a care order by the Irish Court on 3rd March 2011. On 4th October 2011 P1 was placed at St Andrew’s Healthcare in Northampton England following the relevant consent from Northamptonshire County Council in accordance with Article 56 of Council Regulation 2201/2203 (‘Brussels IIR’).  P1 was admitted under section 2 of the Mental Health Act 1983 (‘MHA’). After a review by the Mental Health Tribunal P1 was discharged from section. The tribunal noted that it was desirable for P1 to remain and be assessed in hospital; however the detention under section 2 of the MHA was not warranted or justified. P1 remained in St Andrew’s under the Irish order. An urgent order was obtained by the English Court under Article 20 of Brussels IIR when P1 escaped from St Andrew’s. The matter was considered by the Irish Court on 17th May 2012 and an application for recognition and enforcement was made under Part 31 of the Family Procedure Rules. P1 was diagnosed with ‘bipolarism’ and a serious personality disorder. During 2014 P1 became open to intervention and treatment. The HSE wished for P1 to remain at St Andrew’s and ultimately return to Ireland, and the Irish Court would continue to review P1’s situation. P1 expressed a willingness to remain at St Andrew’s. As P1 had reached 18 years and the children orders that had been in place had expired, on 23rd October 2014 the HSE obtained an order under the inherent jurisdiction of the High Court in Ireland for P1’s continued placement and treatment at St Andrew’s pending his return to Ireland.  P1 was assessed as having litigation capacity within these proceedings. After several interim orders by the Irish Court a full hearing was held on 26th February 2015 where P1 was represented by a guardian ad litem and gave evidence by video link as he was too unwell to return to Ireland. After full argument regarding Irish legal principles the Irish Court granted the HSE’s application but with reviews.

P2
P2 is 18 years old and she has a diagnosis of mixed disorder of conduct and emotions and now that she is an adult is likely to be diagnosed with a personality disorder. P2 has been in psychiatric institutions since 2012.  P2 was subject to orders placing her at St Andrew’s. After a short return home P2’s mental health deteriorated and she returned to St Andrew’s requiring treatment for at least another 6 months. Orders were made for P2 to remain at St Andrew’s and a hearing was listed on 12th February 2015 to determine P2’s capacity. P2 was deemed to have litigation capacity like P1 and instructed her lawyers directly. On 12th March the Irish Court made an order under its inherent jurisdiction detaining P2 at St Andrew’s. The order stated that P2 should return to Ireland as soon as possible but no later than 12th June 2015 where she would be detained as a psychiatrist placement. This order has however been appealed by the HSE, P2 and P2’s guardian ad litem. Pending the appeal the HSE invited the English Court to recognise and enforce the order pursuant to Schedule 3 of the Act.

P3
P3 is 20 years old and he has past history of ADHD, substance misuse, difficulties with language comprehension, conduct disorders and aggressive unpredictable behaviour. He was a voluntary patient until the end of 2012 in Dublin but his psychiatrist concluded that he should be transferred to St Andrew’s. Under its inherent jurisdiction the Irish Court granted the order on 21st December 2012. P3 remained at St Andrew’s for two years and good progress was made. An application was made to the Irish Court to remove P3 from Northampton to Birmingham in a low secure unit, also run by St Andrew’s. Further orders in the same terms as the order of 21st December 2012 permitted the HSE to transfer P3.

The English court listed all 3 cases together and invited the Official Solicitor (‘OS’) to act as Advocate to the Court. At the hearing the court was provided with a letter from P3’s psychiatrist stating that P3 was considered to have litigation capacity. P3 did not wish for the court to review his situation at this stage.

Arguments for determination
The issues were: -

1. Whether Schedule 3 implements obligations in respect of the recognition, enforcement and implementation of ‘protective measures’ imposed by a foreign court regardless of whether the court is located in a Convention country and whether additional steps need to be taken if that are court is in a non-convention state? 
The HSE argued that the court must take care when considering an application from a non-convention state so as to ensure that the construction of Schedule 3 remains consistent, but there are not two different rules. The OS argued that Schedule 3 distinguished between Convention and Non-Convention states and in some cases imposes different rules and that the court should take a ‘more cautious approach generally’ to states that have not ratified the Convention. It was argued that Schedule 3 did apply to both Convention and Non-Convention states but different considerations and issues of public policy may lead to different conclusions.

2. Whether  P1, P2 and P3 were ‘adults’ within the meaning of paragraph 4 of Schedule 3?
The HSE argued that Convention deliberately did not use the term ‘incapacity’ in terms of individuals being covered by the protection of the Convention. The OS argued that because a person is deemed to lack capacity in one country does not mean they should be held to lack capacity under the law of another country as a finding as to capacity was not a finding of fact and does not fall within paragraph 21 of Schedule 3.

3. Were the provisions in the Irish Orders “protective measures’ within the meaning of paragraph 5 of Schedule 3?  
There were no issues between the parties on this matter.

4. Were P1, P2 and P3 habitually resident in Ireland? 
The OS argued that the test was not an objective view but a subjective view and that the English Court would be bound by the Irish Court’s decision that the Patients were habitually resident in Ireland. P1 argued that the assessment should be made at the date of the hearing and that P1’s wish to return to Ireland is not inconsistent with his being habitually resident in England. Just because the Irish court declared that the patients were habitually resident in Ireland did not stop the English Court making its own determination. The HSE argued that the court is bound by the findings of fact made by the Irish Court. 

5. Where the procedural safeguards in paragraph 19(3) met? 
P2 argued that the word ‘thinks’ in paragraph 19(3) and (4) has set the bar low. The OS questioned whether representation by the Guardian ad Litem in the Irish Court was sufficient for the Patients to be heard as they could not travel to discuss their respective cases or give evidence.  

6. Would recognition of the Irish orders be manifestly contrary to public policy?

7. Are the Irish inconsistent with mandatory provision of English Law? 
Amongst further arguments at paragraphs 64 and 65 the OS argued that the criteria established in the authorities regarding a person’s deprivation of liberty must be met. The OS argued that in this case there was no basis that the court assesses whether or not that criteria was met in the Irish Court, although the HSE had provided the evidence that was placed before the Irish Court. Even if the review satisfied the criteria the English court would need to go behind the face of the order to ensure that mandatory provisions of English law were followed. The HSE argued that the English Court is only obliged to undertake such limited examination as is necessary to satisfy itself that the guarantees in Articles 5, 6 and 8 are met. The HSE argued that the court must strive to achieve a ‘combined and harmonious application’ (paragraph 67). The OS, P1 and P2 further argued that the measures taken by the Irish Court were inconsistent with sections 2, 1(5) and 16A(1) of the Act. The HSE argued that section 2 does not operate as part of the recognition and enforcement of protective measures and Schedule 3 should be read as a ‘self-contained unit’. The decision to recognise an order is not a decision governed by the Best Interest test under section 1(5); and it is a measure of recognition and enforcement not a welfare order as defined in section 16A.

The Law
The court first reviewed and considered the Hague Convention on the International Protection of Adults 2000 (paragraphs 21 to 24). The Convention has not been ratified by England but it is given effect where specified under the Act (see Re O (Court of Protection: Jurisdiction) [2013] EWHC 3932 (COP), paragraph 7). Therefore it is the Act that the court must have regard to (section 63 and Schedule 3).

The court considered its obligations in relation to Convention and Non-Convention Countries.  

The Court considered the meaning of section 2(1) of the Act relating to capacity and the meaning of ‘adult’ in paragraph 4(1) of Schedule 3 and the explanatory note (paragraph 41). The definition in Schedule 3 is almost identical to that of the 2000 Convention: ‘being a person aged over 18 who, by reason of an impairment or insufficiency of their personal faculties, is not in a position to protect their interest’ (see paragraph 42). The focus is on the ‘factual description of the adult rather than any legal test as to capacity.’ (Paragraph 43). 

The court considered the case law in relation to habitual residence (paragraph 49): An English Local Authority v SW and Others [2014] EWCOP 43, Mercredi v Chaffe (Case C-497/10) PPU) [2012] Fam 22 and A v A (Children: Habitual Residence) Reunite International Child Abduction Centre intervening [2013] UKSC60. 

Habitual residence is a question of: 

1. Fact and not a legal concept;
   
2. The place which reflects some degree of integration;
   
3. The essential facts and individual nature of the enquiry should not be ‘glossed’ with legal concepts producing different results to which a factual enquiry would produce.

It stated by reason of paragraph 21 of the Schedule the finding of fact by the Irish Court was conclusive for the purposes of paragraphs 19 and 20 and there was no power to challenge that finding.

The court only has discretion to decline to recognise a foreign order if all three conditions are satisfied in paragraph 19(3), namely, that if the court thinks that the measure taken was not urgent, and the adult was not given an opportunity to heard, and that omission amounted to a breach of natural justice.

The court can refuse recognition if it is manifestly contrary to public policy, or that the measure would be inconsistent with a mandatory provision of English Law, or that the measure is inconsistent with one already taken or recognized (paragraph 19(4)). The court considered the case of Re M [2011] EWHC 3590 (COP). Recognition of a measure that would be inconsistent with a mandatory provision of English Law would by definition be manifestly contrary to public policy. The court considered this point in detail in paragraphs 63 to 95.

The court must look at Articles 5, 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR’) and the Act when looking at English mandatory law.  

The court considered the criteria established in Winterwerp v Netherlands (1979) 2 EHRR 387 where the European Court held that except in an emergency depriving the liberty of someone of unsound mind can only be justified under Article 5(1)(e) if three minimal conditions are satisfied:

1. That it must be established through objective medical expertise that the person is of unsound mind;
   
2. It must be established that the mental disorder warrants compulsory confinement;
   
3. The validity of the confinement depends on the persistence of mental disorder.

The court should look at the whether or not the conditions in Winterwerp are satisfied. Secondly, it must consider the Patient’s right to challenge their detention, namely, the right to take proceedings to challenge the basis upon which they are detained, and the right to review their detention. Thirdly, the effect of recognising a foreign order is to ‘domesticate’ that order as if it were a measure taken by the English courts.

Decision
As to the issues the court concluded: 

1. Schedule 3 implements obligations regardless of whether or not the state is a Convention or Non-Convention State and it is not possible to apply different rules. The court did not accept that it should automatically adopt a more cautious approach - each case will turn on its own facts (paragraph 39);
   
2. There was a difference between the meaning of ‘adult’ in the general jurisdiction of the Court of Protection under the Act and those in respect of whom protective measures are taken by a foreign court. The declaration made by the Irish Court of all three patients provides sufficient grounds to conclude that they fall within the meaning of adult for the purposes of paragraph 4 of Schedule 3;
   
3. The orders placing the patients at St Andrew’s where ‘protective measures’ within the meaning of paragraph 5(1)(e) of Schedule 3.
   
4. The court could not challenge the finding of the Irish Court as to the habitual residence of the patients.
   
5. The word ‘thinks’ in paragraph 19(3) means ‘on the balance of probabilities’ rather than a lower standard. The court concluded that there were ‘no grounds’ to conclude that the Patients were not given a full opportunity to be heard in the Irish proceedings. It therefore concluded that the discretionary power under paragraph 19(3) did not arise, as all three circumstances were not satisfied.
   
6. The court agreed that it would be manifestly contrary to public policy for someone who is mentally ill and detained in hospital not to be allowed to make regular challenges to their detention, but concluded that the regular reviews provided by the Irish Court gives P2 an opportunity to challenge her confinement and therefore is not manifestly contrary to public policy.
   
7. The court was satisfied that the Winterwerp criteria were met and that the Irish Orders were not inconsistent with Articles 5, 6 and 8. A decision under paragraph 19(1) and 22(2) is not governed by the Best Interest test section 1(5). Further it is not a welfare order under as per section 16A and the order is not therefore inconsistent with the mandatory provisions of English law.

Discussion
The Irish Court made findings of fact regarding all three patients’ capacity and made relevant declarations that was binding on the English Court by paragraph 21 of Schedule 3.

The fact that P1 was meeting the test for means-tested benefits in England, that he has been here for more than 3 years (which P1 argued was neither temporary nor intermittent) and so was persuasive that he was habitually resident in England, did not determine that he was habitually resident in England. Although the court did not have power to challenge the Irish Court’s findings it stated that the relevant orders were in line with the authorities. All three patients were in England temporarily and hoping to return to Ireland as soon as possible. All three cases were under review.

The Irish courts are similar to the English courts and all three Patients were represented by a Guardian ad Litem and by Counsel and had their respective cases properly heard; P1 gave evidence by video link. Although it could be said that the cases could not be described as ‘urgent’ the fact that the Patients were given an opportunity to be heard did not allow the court to exercise its discretion. Although a case may not be open to the court to use its discretion under paragraph 19(3) issues in relation to public policy under paragraph 19(4) may create an open to challenge on the grounds of public policy. 

If the conditions in Winterwerp are not satisfied it is difficult to see how the court could recognise the order as it would be incompatible with is obligations under Article 5.

The fact that there may be a conflict between the laws and procedures of the different states does not itself lead to refusal to recognise or enforce the order on grounds of such inconsistency. Only where it would be manifestly contrary to public policy that the discretionary ground to refuse will arise and that test is ‘stringent, the bar is set high’ (paragraph 94). 

A limited review will always be required but a wide-ranging review as to the merits of the foreign order is not necessary or appropriate. Such orders are likely to be of short duration.

Any application under Schedule 3 should currently be listed before a full time High Court Judge in the first instance and should remain with that judge if possible.

Pending consideration of the Rules relating to a litigation friend the court should appoint one to act for an individual in such applications.

Read the full text of the judgment on Bailii