Mental Capacity Case

HSE Ireland v SF (A Minor)

Summary: We make mention of this case (in which Alex appeared) because, although it is a case involving a child falling outside the scope of the MCA 2005, it is a companion piece to the Re M decision ([2011] EWHC 3590 (COP)) discussed in our February newsletter, relating to the placement of a young adult from the Republic of Ireland in an English psychiatric institution. It also raises some of the same complex issues as to the safeguarding of the rights of the vulnerable when they are placed across borders.

In SF Mr Justice Baker considered an ex parte application made by the Health Service Executive of Ireland ("the HSE") for an urgent order under Article 20 of Council Regulation (EC) 2201/2003 ("Brussels II Revised") concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility in respect of SF.

SF, aged 17, was diagnosed with an emotionally unstable personality disorder, severe depression with suicidal ideation and post-traumatic stress disorder. When SF was 3 years old, she was received into the voluntary care of the authority responsible for child protection in the part of Ireland where she lived. A full care order was granted on 10 January 2006. In 2008, after a break down in a foster placement, she was placed in a high support unit. However, SF's behaviour deteriorated further and the staff at that unit reached the conclusion that they could not keep her safe. On 5 January 2012, the HSE applied for and was granted an order permitting SF to be detained at a special care unit. Those responsible for her care reached the conclusion that there was no suitable unit in the Republic of Ireland and approached an English unit. Initially, SF was opposed to any move to the English Unit but by March 2012 was consenting to a move to the English Unit for a three month period of assessment and treatment, and indeed, became anxious to leave the Irish unit as soon as possible. There was some delay whilst the authorities sought to obtain consent in accordance with Regulation 56 of the Brussels II revised regulation to transfer SF to the English Unit. In this period, SF's behaviours became the source of considerable concern and two medical experts reported on the urgent need to move her.

The relevant consent was obtained in April 2012 and the HSE applied to the English Courts for the recognition and enforcement of the Irish Order permitting SF to be detained. In the interim they made an application for urgent relief under the provisions of Article 20 Brussels II Revised in the form of an (English) order:

(a) that SF do reside at the English Unit for purposes of such care and treatment as may in the opinion of the Director of the English Unit be necessary; (b) that there be leave to the staff of the English Unit to detain at or return SF to the English Unit and to use reasonable force (if necessary) in so detaining her or returning her; and (c) that there be leave generally to Director of the English Unit and those under his direction (to include all or any of the multi-disciplinary team including clinical, care or similar professional and/or ancillary health care staff) to furnish such treatment and care to SF as in their opinion may be necessary.

A central issue before Mr Justice Baker was whether the use of Article 20 for these purposes was permissible.

The Judge considered the case law concerning the interpretation of the Brussels II revised regulation, including the recent preliminary ruling of the CJEU in HSE for Ireland v SC (C-92/12 PPU) in which the Irish Court had referred questions to the CJEU in relation to the lawfulness of using Article 20 in what were very similar factual circumstances.

Mr Justice Baker concluded that the CJEU judgment, whilst emphasising the need for expedition on all parts, implicitly approved the use of Article 20 in circumstances such as those arising in the present case, namely where emergency protective measures were required pending registration and enforcement of the Irish Order. The other pre-conditions for reliance on Article 20, as set out in Re A (Area of Freedom, Security and Justice (C-523/07) [2009] 2 FLR 1 and Deticek v Sgueglia (C-403/09) [2010] 1 FLR 1381, namely that relief is urgent, is in respect of persons in the Member State concerned and is provision, were also met on the facts. Equally, the further requirement that the Member State have the relevant powers (provided for in Article 20 itself), was met as it had long been recognised that the powers under the inherent jurisdiction extent to making orders for the detention of children for therapeutic purposes: Re C (Detention: Medical Treatment) [1997] 2 FLR 180.

Accordingly Mr Justice Baker granted the interim order sought. The Judge further noted that all cases should be considered on their facts and emphasised the need for judicial cooperation as between different Member States.

Comment: The compulsory placement of foreign patients in English psychiatric institutions (other than under the provisions of the MHA 1983) is something that we would anticipate that very few of our readers would have thought took place; we would also anticipate that even fewer would have given a thought to how such could be lawfully achieved. However, this case, along with Re M, shows the English courts grappling with the issues involved in a creative and pragmatic fashion. At some point, whether with a child under the provisions of Brussels II, or an adult under the provisions of Schedule 3 to the MCA 2005 (an amendment to Schedule 3 due to come into force shortly making it clear that a 16-17 year old could only come under one regime), the Courts will have to test whether the mechanisms adopted to date properly protect their ECHR rights. The views of the editors (or, at least, of Alex, who has spent months thinking about little else) is that the mechanisms do, but we are aware that very strong views to the contrary are held, and a contested hearing will ultimately be the only way in which to resolve the question.