Re EE (Capacity: Contraception and Conception)

Summary

In this case, Poole J took the very unusual step of declining to recognise and enforce a foreign order under Schedule 3 to the MCA 2005.  It was particularly unusual because the order in question was not ‘foreign’ in a conventional sense, but emanated from Scotland, in the form of a guardianship order made in June 2021 in favour of SF’s mother and father (but now only relevant in respect of SF’s mother as her father had died).  

SF’s case had been before the court before, Poole J having determined in 2023 that she was habitually resident in Scotland, notwithstanding that she had been living in England and Wales for a number of years, first as a patient detained in hospital under the Mental Health Act 1983 and then, since 2022, in a supported living placement in the community.  As Poole J noted at paragraph 2:

It is agreed, as is clear from the evidence, that SF is not free either to move from her current residence, or to come and go from it. She is subject to physical restraint at times and lives behind doors that may be locked to restrict her movement. She is under the continuous supervision and control of carers. The objective circumstances meet the “acid test” for the deprivation of her liberty set out in the judgment of Lady Hale in Cheshire West v P [2011] UKSC 19. The arrangements that amount to continuous supervision and control are imputable to the state. SF herself is unable, by reason of her mental incapacity, to consent to the arrangements that amount to a deprivation of her liberty. However, the SGO [Scottish Guardianship Order] gives power to SF’s mother to authorise the arrangements and to consent to the same. If the SGO is recognised in this jurisdiction then SF’s deprivation of liberty will have been authorised to date and will continue to be authorised so long as the SGO remains in force. If not, then in the absence of authorisation, her deprivation of liberty will have been unlawful and will continue to be unlawful until either it ceases or lawful authorisation is given.

Poole J was referred to K v Argyll and Bute Council [2021] SAC (Civ) 21, in which the Sheriff Appeal Court determined that orders appointing a guardian (the equivalent in Scotland of a deputy) can include the power for the guardian to authorise the deprivation of the incapacitous adult’s liberty.   He proceeded on the basis that the Adults with Incapacity Act 2000 (1) allowed a guardianship order to confer on the guardian the power to authorise or consent to the deprivation of the incapacitous adult’s liberty; and (2) that the guardianship order in question did confer such powers.

After some procedural juggling, the application was before the court made by the relevant Scottish local authority seeking recognition and enforcement of the SGO.   The other parties did not seek to challenge the process of making guardianship orders in Scotland was systemically defective; Poole J also reminded himself at paragraph 18 that “[w]hilst I need to consider some of the factual circumstances concerning the making of the SGO, I remind myself that I must conduct a “limited review” as advised by Baker J”.  This “limited review,” outlined in Re PA, PB and PC [2015] EWCOP 38 is required in cases where the order being put before the Court of Protection for recognition and enforcement gives rise to a deprivation of liberty of the adult, and requires “the court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual’s right to challenge the detention under article 5.4 is effective (i e that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter).” 

Poole J also focused on paragraph 19(3) of Schedule 3 to the MCA 2005, which gives the court a discretion to refuse recognition of a protective measure if the case in which it was made was not urgent, the adult was not given an opportunity to be heard, and that omission was a breach of natural justice.  All three of these have to be met.  

Poole J was clear that the case in which the SGO was made in June 2021 was not urgent:  

21. […] The application had been made more than three months before the protective measure was granted. There was ample time to have afforded SF an opportunity to be heard. Urgency may explain or excuse the failure to provide an adult with the opportunity to be heard, but there was no such urgency in the present case. 

As regards the other two conditions, Poole J noted that:

22. […] It is relevant to consideration of those conditions that the protective measure was for seven years, was likely to cover the transfer of SF from hospital detention into the community, and that it included provisions for her physical restraint. These factors point to the importance of protecting SF’s fundamental Convention rights in this particular case. It is also relevant that at the time when the SGO was made, SF was detained as a patient in a psychiatric unit and was already the subject of a guardianship order that permitted the authorisation of the deprivation of her liberty. The European jurisprudence such as MS v Croatia (No. 2) (above) raises an expectation that an adult in SF’s position in June 2021 ought to be heard or, if their condition does not allow for that, ought to have representation. 

[…]

25. As a matter of fact SF was not heard by the Sheriff: she was not notified of the proceedings and did not attend the hearing. There was no direct or indirect evidence of her wishes, feelings, or views. She did not have legal or other representation. There was no person acting as her guardian or similar. There is no evidence that SF was provided with the opportunity to secure representation or to give her wishes, feelings, or views to the court. The s37 certificate did not relate to guardianship or personal welfare. Even if one accepts that Marcin Ostrowski intended to certify that discussions about capacity in relation to personal welfare could be harmful to SF, he did not advise that it would pose a risk to SF to ask her for her views about where she should live, her care, her freedom to come and go, the use of restraint, or whether she was content for her parents to make decisions on her behalf.

[…]

28. There can be little doubt that SF was not in fact heard in relation to the protective measure (the SGO), but the relevant question is whether she had an opportunity to be heard. An adult may be unable or unwilling to take up the opportunity to be heard, but the requirement is that the opportunity is afforded to them. If they cannot express a view themselves, or could not do so to the court, then steps might be taken, as envisaged by COPR r1.2, and under AISA by means of appointing a safeguarder or advocate, to allow their voice to be heard. An adult who has a guardian, an advocate, and/or legal representation, as was the case in PA, PB and PC (above), will clearly have had an opportunity to be heard. SF did not have any such assistance. As COPR r1.2(e) indicates, there may be other means of securing the adult an opportunity to be heard, but in the present case there is no evidence that any attempts were made to ask SF her views about residence, care, freedom of movement, restraint, or decision-making about her life.

29. In my judgment therefore, no opportunity was provided to SF to be heard in the case in which the protective measure was made. Furthermore, having regard to the wide powers granted to the guardians, including authorisation of the deprivation of SF’s liberty, and the application of those powers to any future community placement, and given the duration of the order (proposed to be indefinite and made for seven years), the failure to give SF an opportunity to be heard did amount to a breach of natural justice. I am sure that all those involved sought to protect SF’s best interests and that SF’s parents were properly assessed as being suitable guardians. I do not doubt that SF lacked capacity at that time to make decisions about her personal welfare. However, there was no opportunity for her wishes, feelings, and views to be communicated to the court and no provision made for her interests to be represented. There were no safeguards for the protection of her Art 5(1) rights. Natural justice required that in a case where SF’s liberty was being put into the hands of others for a period of seven years, she should have had an opportunity to be heard and/or an opportunity to be represented. SF’s access to the court should not have been dependent on her taking the initiative. Effective access should have been secured for her. As it is, there were no measures taken to ensure that her Art 5(1) rights were upheld (emphasis added)

Poole J was struck by the contrast with the cases where orders had been put forward for recognition and enforcement from Ireland, providing for representation and continuing judicial oversight, noting (carefully) at paragraph 30: “[t]his not an observation that the system for authorising deprivation of liberty under a guardianship order in Scotland is defective in any way, but only a comparison of the particular facts of the reported cases that came from Ireland, and the case before me.”

Aware of the high bar that should be met before finding that the processes of a court in another jurisdiction breached natural justice, Poole J accepted the submissions made on behalf of the Official Solicitor and the English local authority that SF was not given an opportunity to be heard and the omission amounted to a breach of natural justice, which engaged his discretion to refuse recognition of the order.  

Before deciding whether to exercise that discretion, Poole J then also considered recognition of the protective measure would be manifestly contrary to public policy (19(4)(a)) or would be inconsistent with a mandatory provision of the law of England and Wales (19(4)(b)).   He looked first at the Human Rights Act 1998, making it unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court or tribunal.  He noted that:

32. […] Article 5(4) of the Convention provides that “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” In Winterwerp (above) it was confirmed that this provision requires “review of lawfulness to be available at reasonable intervals” [55]. In the present case the SGO was made for seven years. There is no mechanism within the SGO for reviews within that period. Although SF now has the Official Solicitor acting on her behalf within these proceedings, that provision has been triggered first by the application by Sunderland City Council and now by the application by Aberdeenshire Council for recognition of the SGO. Neither were a party to the SGO application. If SF had a right to apply for a review of the guardianship order, there was no mechanism provided to give effect to that right. As a person of “unsound mind” steps should have been taken to secure the effective exercise of her art 5(4) rights but no provisions were made. In the absence of any representation for SF or any scheduled review, it was likely that the guardianship order would remain in place, without review, for seven years. This was so even when it was known at the time when the SGO was made that SF was considered fit for discharge from her hospital detention. Significant changes in her living conditions were anticipated but no review was provided for when those changes took place. The period of seven years is far longer than the maximum one year period in the MCA 2005 for the authorisation of a deprivation of liberty pursuant to Sch A1, para 29(1). The standard term of guardianship under the Scottish system is three years.

33. It is not for me, a judge in the jurisdiction of England and Wales, to lay down a maximum period for a Scottish Guardianship Order. In any event, what is a reasonable period would depend on the circumstances of the case. But, in this case, given the considerable powers the guardians were being granted, the likely change in living arrangements, and SF’s vulnerabilities and her inability to trigger a review herself, and the absence of any representation to do so on her behalf, seven years without ensuring an effective review of the guardianship order was manifestly beyond a period that could be considered to be reasonable.

In consequence, therefore, 

34. In my judgement, recognition of the SGO would be contrary to a mandatory provision of the law of England and Wales in that it would breach Art 5(4) of the ECHR and therefore be unlawful under the HRA 1998 s6. By the same reasoning, the absence of any opportunity for SF to be heard in the proceedings in which the SGO was made, was contrary to Art 5(1)(e) ECHR and therefore would have been unlawful under HRA 1998 s6.

35. Not only would recognition be contrary to mandatory provisions of the law of England and Wales, but those breaches of law would relate to fundamental human rights, not only under Art 5, but also under Arts 6 and 8. I have already found that the failure to provide SF with an opportunity to be heard was a breach of natural justice. In the premises, and on the same grounds, it appears to me that it must follow that it would be contrary to public policy to recognise the SGO and that therefore MCA 2005 Sch 3 para. 19(4)(b) is established.

36. The Official Solicitor submits, and I agree, that it is difficult to contemplate a scenario in which the Court of Protection determines that either of the grounds in sub-paragraphs 19(3) or 19(4) were made out, and goes on to recognise the order anyway. Here, I have found that the SGO was made in breach of natural justice and that recognition of it would be manifestly contrary to public policy. Whilst respecting the importance of comity and recognising the differences in the legal framework and jurisprudence as between Scotland, and England and Wales, the failure to uphold SF’s fundamental human rights in this particular case means that I should exercise my discretion to refuse recognition of the SGO made in June 2021.

Poole J reminded himself that Parliament had authorised a system of recognition and enforcement of foreign orders, and that it was not his role to refuse recognition purely on the grounds that certain procedures or substantive provisions in Scotland were different from those in England and Wales. However: 

37. As noted, no party sought to challenge the Scottish guardianship system itself. However, on the particular facts of this case, important aspects of the SGO and the procedure under which it was made were contrary to SF’s fundamental human rights such that recognition should be refused. Schedule 3 provides an opportunity for the courts of this jurisdiction to carry out a limited review of protective measures made in another jurisdiction. It is not a “rubber stamp” exercise, as this case demonstrates.

Comment 

Whilst of no little interest for those in England and Wales, especially as a reminder that the Court of Protection will not simply rubber stamp foreign protective measures, this judgment is of particular significance for those concerned with the law in Scotland (and Jill gives her own observations in the Scottish section of the report).   Whilst Poole J was at pains to say that he was not seeking to pass comment on the guardianship system in Scotland more broadly, the detailed scrutiny that he undertook of the circumstances under which the order was granted in SF’s case is one that shines a light on a system which is largely unreported.   It is to be hoped – and expected – that Scottish Government will read it with care as they respond to the Scottish Mental Health Law Review.