The Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3) is the sequel to a decision in 2020 concerning SM, an Irish citizen with a number of complex mental health needs. The application was for recognition and enforcement of a further order of the Irish High Court, made by the President of that court, providing for her continued detention and treatment at an English mental health facility, Ellern Meade. Materially, the order made by the President of the High Court provided substantively for the Medical Director of Ellern Mede, to be permitted to detain SM for the purpose of providing assessment, treatment, welfare, and therapeutic services for her, pending further Order. The Order also permitted the Medical Director to:
take all necessary and/or incidental steps (including the provision of consent for any medical psychiatric psychological or other assessment treatment or assistance whether at Ellern Mede or (if necessary and appropriate) at some other location or facility) and to use such reasonable force and/or restraint as may be necessary in so doing to promote and/or ensure the care protection safety and welfare circumstances of [SM] and to provide [SM] with such hydration, sustenance, medication and treatment as may be clinically and /or medically indicated in accordance with the operational policies of Ellern Mede, including for the avoidance of doubt the provisions of nasogastric feeding.
At a hearing in January 2024 before the Irish High Court, Heslin J had noted that
this is an application to ensure the continuation of vital treatment in the context of a necessary care regime for [SM], plainly in her best interests and the evidence makes clear, looking at it through the lens of the inherent jurisdiction that this is someone who lacks capacity and that the orders sought today constitute a necessary and proportionate response by the court to ensure that [SM]’s fundamental and constitutionally protected rights are vindicated and protected.
Hayden J identified that:
29. Evaluating capacity “through the lens of the inherent jurisdiction” appears to be a very different exercise from that required by the MCA in this jurisdiction. I emphasise ‘appears’ because the jurisprudence regulating the application of the inherent jurisdiction in the Irish Court may serve, as I strongly suspect it does, to deliver a similar approach to our own.
Hayden J identified that he had, in 2020, been “exercised about the highly intrusive nature of the order (broadly replicated here) and its continuing duration.” He noted that:
42. In my judgement, the obligation to act compatibly with ECHR Convention Rights when recognising and/or enforcing a foreign order exists both independently from and as a facet of public policy. Whilst, to repeat Munby LJ’s phrase, “the test in stringent, the bar is set high”, the obligation to evaluate compatibility remains, and is not perfunctory.
43. SM’s welfare has been unswervingly in focus during the Irish High Court’s exercise of its inherent jurisdictional powers. It is clear, however, that SM’s capacity has fluctuated over the last 6 months and may well continue to do so. Some of her recent recorded observations are, as I have commented, both measured and insightful. I consider that, in such circumstances, having emphasised both the duration and the draconian nature of the order that I am invited to recognise and enforce, I am required, properly respecting SM’s rights, to satisfy myself that she continues to lack capacity in the sphere of decision taking surrounding her medical treatment. This I regard as my obligation, both under the Human Rights Act 1989 and in ensuring that this order remains compatible with public policy in England and Wales. As the papers presently stand, I am not yet able to undertake this exercise in the way that is required, as analysed above. For this reason, I propose to direct an up-to-date assessment of SM’s capacity to understand and consent to her continuing treatment. For the avoidance of doubt, I do not require any assessment as to whether such treatment remains in her best interests. Like the Irish High Court, I am entirely satisfied that it is.
44. Having foreshadowed my concerns in respect of capacity, Mr Setright indicated that the HSE would instruct a psychiatrist to assess SM’s current capacity relating to her treatment and extending this to litigation capacity. I am grateful to him for adopting that collaborative approach, which if I may say so, has been a feature of the history of this difficult case. That report is to be filed by 21st November 2024. For the avoidance of doubt, I am satisfied that the evidence as it presently stands, enables me to continue to recognise and enforce the orders of the Irish High Court.
Comment
As set out in this article I have written with Chiara Cordone, securing distributed rights protection – especially in the context of compulsory admission and treatment – is a complex matter, but is vital in circumstances where, in effect, a corner of an English mental health hospital becomes for a sustained period of time a patch of foreign soil. Whilst we cannot pre-empt the evidence that may be forthcoming as to SM’s capacity, it is perhaps worth highlighting that Hayden J was (mostly) correct to identify that the approach to capacity under the inherent jurisdiction of the High Court of Ireland reaches a similar end point to that under the MCA. Since the coming into force of the Assisted Decision-Making (Capacity) Act 2015 (and, indeed for some little time prior), the High Court takes its approach to capacity from that contained in the 2015 Act.[1] That approach is a purely functional one – i.e. it looks very much like the functional test contained in the MCA 2005, but does not have any requirement for the functional inability to process the information to be caused by an impairment of or disturbance in the functioning of the mind or brain. That may give rise in some cases to interesting questions of:
- Whether a person lacking capacity for purposes of the 2015 Act lacks capacity for purposes of the MCA 2005 (an interesting example would be a victim of domestic abuse who cannot use and weigh the risk that they are at if they return home – in Ireland, they could arguably be found to lack capacity to make the decision to return; in England & Wales, they could not be found to do so unless their inability to use and weigh the risk was caused by an impairment or disturbance in the functioning of their mind or brain);
- Whether, even if they do not lack capacity for purposes of the MCA 2005, they nonetheless fall within the scope of Schedule 3, which does not talk of incapacity, but talks of a person who “as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests” (paragraph 4(a) of Schedule 3).
[1] See, in particular, In the Matter of KK [2023] IEHC 565 at paras 22-25.
