Mental Capacity Case

Re M

Mostyn J.
[2011] EWHC 3590

Summary: As presaged in last month's edition, Mostyn J determined just before Christmas an unprecedented application under Schedule 3 MCA 2005 for recognition and enforcement of an Order of the High Court of the Irish Republic placing a young man, NM, in an English psychiatric institution. The application (in which Alex appeared on behalf of the applicant Irish Health Services Executive) raised a number of stark issues. The Irish order in question (made under the inherent jurisdiction of the High Court in the ROI) required the transport to and treatment of NM at an English psychiatric institution in circumstances where: (1) such would be overwhelmingly likely to amount to a deprivation of his liberty; and (2) he satisfied the clinical criteria for detention under the MHA 1983. A significant question for the Court, therefore, was whether it was barred from recognising and declaring to be enforceable the order of the Irish High Court by virtue of the prohibitions in s.16A of and Schedule 1A to the MCA 2005. Mostyn J had little hesitation in holding that it was not, at paragraph 6 noting that:

"Mr. Ruck Keene in his skeleton argument has responsibly drawn my attention to the fact that under s. 16A of the Mental Capacity Act, the court may not include in a welfare order a provision which authorises the person to be deprived of his liberty [if he is ineligible to be deprived of his liberty by virtue of Schedule 1A]. The reference to a welfare order is to an order under s. 16(2)(a). However, an order made by me under paragraph 19 of Schedule 3 is not a welfare order under s. 16(2)(a). The whole point of s. 16A is to ensure that courts do not outflank the mandatory provisions of s. 4A and Schedule A1 by making, in effect, deprivation of liberty orders under s. 16(2)(a), but that is not connected at all to the freestanding power to recognise a foreign order of this nature under paragraph 19 of Schedule 3, and so whilst Mr. Ruck Keene has fairly and responsibly drawn my attention to that, it is not something that impacts on any possible exercise of discretion under paragraph 19(4)."

It is perhaps to be noted, as it is not immediately obvious from the judgment, that the terms of the Irish Order sought to provide NM with safeguards to ensure his position was kept under appropriate review, not least by including within it provisions mirroring, to the greatest extent possible, those of the MHA 1983.

Comment: Schedule 3 to the MCA 2005 is an extremely powerful piece of legislation. Quite whether Parliament understood how powerful it would be is an interesting question, especially given the frankly curious decision to enact it in such a way as to implement in English law the provisions of the 2000 Hague Convention on the International Protection of Adults on a unilateral basis. That it is a very powerful piece of legislation has only been reinforced both by this decision and by the decision of Hedley J in Re MN [2010] EWHC 1926 (Fam); [2010] COPLR Con Vol 893. The former decision confirmed that the Court in deciding whether to recognise and enforce a foreign protective measure was not required to consider whether such was in the person's best interests; this decision confirms that the Court can recognise and enforce a foreign order detaining a person habitually resident overseas in an English psychiatric institution, and that the threshold for declining such recognition and enforcement will be a high one.

Whilst this decision may raise eyebrows it is perhaps to be noted that the framers of the 2000 Hague Convention had had specifically in mind cross-border psychiatric placements, including those without the consent of the individual in question and against their will. Whether those drafting Schedule 3 had in mind either these deliberations or that English Courts would be asked to recognise and declare enforceable applications of the nature brought before Mostyn J is, again, a nice question. However, we suggest that the approach adopted by Mostyn J both to the nature of the exercise required under Paragraphs 19 and 20 and to the interaction of s.16A, Schedule 1A and Schedule 3 is plainly correct. The fact that this gives rise to difficult questions as to how to ensure that the Article 5 ECHR rights of the individual in question (in particular their Article 5(4) rights) are secured is a consequence of the framing of Schedule 3, rather than standing as a necessary bar to recognition and enforcement of an order which complies with the (rather minimalist) requirements of the Schedule.