Mental Capacity Case

The Health Service Executive of Ireland v A Hospital Provider

Theis J

In The Health Service Executive of Ireland v A Hospital Provider [2023] EWCOP 55, the Vice-President, Theis J, rejected the proposition that there might be cases involving deprivation of liberty under cover of a foreign order put forward for recognition and enforcement which could be determined on the papers.  The submission was made that the procedure could apply where:

  1. All parties, including the person who is the subject of the order, consent to the application;
  2. The person who is the subject of the order is already present in this jurisdiction and an order authorising the care arrangements for them has already been recognised and enforced by this Court; and
  3. The new order for which recognition and enforcement is sought involves no substantive change to the care arrangements for the person subject to the order, and merely extends the authorisation of those care arrangements under the inherent jurisdiction.

However, Theis J continued:

23. […] as Mr Setright realistically recognises in his written submissions on this issue, there may be real limitations in such clear demarcation lines being drawn. It may be there are not extant and unequivocal written consents to the application, in which case an oral hearing will be required. Also, in circumstances where there is a time lapse between the order to be replaced and the fresh order this Court will still need to be satisfied that the relevant core criteria under Schedule 3 are established at the date of the making of the new Irish order, by reference to the supporting material, as well as considering whether any matters of public policy arise. Whilst a skeleton argument, cross referencing the supporting material to the core criteria may help, it may in reality reduce delay if this was undertaken at an oral hearing, even if a relatively short one.

24. Finally, Mr Setright sets out, the inherent urgency of these cases often means they come before the court within 48 hours of the sealed Irish order becoming available. The transcript of the judgment sometimes comes later and the consents even later. In this case, the final order of the Irish High Court was provided on 16 October 2023 and this hearing took place two days later on 18 October 2023. This had consequent delays in the preparation of the bundle, which was not available until 11am the day before the hearing.

25. Now having had the opportunity to consider the further written submissions from Mr Setright, I do not consider there should be any change in the arrangements for considering these applications. In accordance with paragraph 17 of Practice Direction 23A the presumption is that these applications will be determined at an oral hearing if they involve authorising deprivation of liberty. There should always be a skeleton argument filed in support, that takes the court through the relevant criteria and directs the court to how the criteria are satisfied by the supporting material lodged. There remains the option for this Court to consider whether a hearing is necessary but due to the urgency with which these applications have to be dealt with and the inherent lateness of all the supporting material being available there are only likely to be limited circumstances when such a course is appropriate, even when, at the very least, the requirements outlined in paragraph 22 above are met. I agree with the observations made by Mostyn J in Re SV that due to the seriousness of the consequences of the reciprocal order being sought, as well as the international aspects, such orders should only be made by a Court of Protection Tier 3 judge following an attended hearing in court, unless the Tier 3 judge otherwise directs.

Theis J also set out observations as to the material that should be filed in support of a Schedule 3 application, and agreed that there should be a core bundle filed which contains the relevant documents in support of the application.

27. The core bundle should contain the following: (i) the application; (ii) the skeleton argument; (iii) the draft order; (iv) the consents (if applicable); (v) the order of the Irish High Court; (vi) the transcript of the judgment and, in cases where this is necessary, the transcript of the hearing. This is to cover situations, such as here, where the ex-tempore judgment refers to exchanges during the hearing. Where the transcript is lengthy relevant passages should be marked up and linked to the skeleton argument.

28. In addition to the core bundle, there should be a separate bundle which includes the other relevant material from the proceedings in Ireland, so they can be referred to if required.

29. It is hoped this structure will enable these applications to be determined with minimum delay and enable this Court to ensure that is it satisfied that the criteria under Schedule 3 MCA are met, including consideration of matters of public policy, and recognising the inherent seriousness of the relief sought, namely the making of summary orders for detention and treatment, albeit the original order is made in another jurisdiction.