Court of Protection reviews provisions for recognising and enforcing “protective measures” made by foreign courts

In a comprehensive decision published earlier this month, The Health Service Executive of Ireland v Ellern Mede Moorgate, Mr Justice Hayden reviewed in some detail the legal framework set out in Schedule 3 of the Mental Capacity Act 2005 (MCA), which provides for the recognition and enforcement of “protective measures” made in other jurisdictions in respect of “adults with incapacity”.

Factual background

The patient, SM, was a 19-year-old girl with a diagnosis of anorexia nervosa and a history of moderate to major depressive episodes.  In March 2019 she had been transferred from a hospital in Dublin to Springfield Hospital in London. Sadly her mental state continued to deteriorate and by February 2020 it was considered that she needed to be urgently transferred to a high dependency unit in Ellern Mede in Rotherham. She lacked capacity to consent to her treatment and as she was habitually resident in Ireland, the Health Service Executive of Ireland (HSE) applied to the Irish High Court seeking an order permitting her transfer.

The order was duly made and the HSE then applied to the Court of Protection to have the Irish order recognised and enforced in England so as to secure:

1. Authority for the placement;
2. Protection for the rights of SM under the European Convention on Human Rights (ECHR); and
3. Recognition for the continued jurisdiction of the Irish High Court while SM remained physically present in England.

Court of Protection decision

Mr Justice Hayden granted the HSE’s application in full, noting that paragraph 19 of Schedule 3 MCA provides for a protective measure taken in relation to an adult with incapacity under the law of another county to be recognised in England and Wales, if it was taken on the ground that the adult is “habitually resident” in the other country. 

Paragraph 19 goes on to set out the only circumstances in which this general rule may be disapplied. 

These circumstances include procedural grounds, namely if the court thinks that:

(a) the case in which the measure was taken was not urgent;

(b) the adult was not given an opportunity to be heard; and

(c) that omission amounted to a breach of natural justice. 

The general rule can also be disapplied, if the court thinks that recognition of the measure would be manifestly contrary to public policy, inconsistent with a mandatory provision of the law of England and Wales or is inconsistent with one made or subsequently recognised by the court in England and Wales.  In essence, where the protective measures relate to the compulsory placement and psychiatric treatment of an individual, the court should only recognise and enforce where it is satisfied that the safeguards guaranteed by Article 5 ECHR are in place.

In relation to orders of the Irish High Court, Mr Justice Hayden agreed with earlier case law that the circumstances would be rare where the court would refuse to recognise and enforce protective measures, given the close similarities between the respective legal systems. In this particular case, it was of note that there would be a regular right of review in the Irish High Court, the first of which was listed to take place within a month of the transfer date.

Points of interest

Two particular points of interest arising from this decision are:

1. The eagle eyed will no doubt have spotted that SM herself is not named in the title of this case. This is because it was considered not necessary as the situation was plainly urgent and she had been represented and her wishes and feelings had been taken into account in the Irish proceedings. The only parties were therefore the HSE and the proposed placement.
2. It was confirmed that an order under Schedule 3 MCA is not a “welfare order” as defined by section 16A(4)(b) MCA. One consequence of this is that the ineligibility provisions of the DOLS regime do not apply, which could mean that recognising and enforcing the order of a foreign court could lead to depriving a patient of their liberty in circumstances that would not be possible under the MCA under domestic legislation.  An example, would be where a patient is being treated or is treatable under the Mental Health Act. Mr Justice Hayden considered that the check on this is the court’s discretion to refuse recognition and enforcement where the order would be manifestly contrary to public policy.