By Adam Tanner – 14th August 2020
On Friday, August 7, 2020, I observed a hearing (Case number COP 13631515 Re OB) before Mrs Justice Knowles, a Tier 3 judge in the Court of Protection. An application had been made by the Health Service Executive of Ireland (HSE) to authorise the transfer of a young man, P, from a prison in Ireland to an interim health care facility in England (funded entirely from Ireland).
The case itself was listed as an hour-long hearing but took less than 45 minutes. The application had the full support of all other parties.
At the opening of the case, and in emails prior to the case, those present in the virtual Court were made aware that this case was subject to a transparency order. This order prohibits anything which may lead to the identification of P, or any member of his family, or the hospital provider, whether through direct naming or in any other way.
The barrister representing HSE (Henry Setright) was aware that public observers were present on the Zoom hearing and he laid out the facts of the case in very clear detail for our benefit. Despite the guidance from Mr Justice Hayden that there should be introductory summaries of the issues involved in the case, it often happens that lawyers and judges alike forget that others are in the court, many of whom will have no clue about the facts of the case. It was a breath of fresh air to see counsel immediately suggest to the court that an overview be given for the benefit of those who were not a party to the case.
It was said that P had been diagnosed with autism, bipolar disorder, intellectual disability, a conduct disorder and also showed signs of a personality disorder. It was also said that P had a history of self-harm, having done so through cutting himself on at least two known occasions. Counsel stated that P’s current placement, within prison, left him in “unsatisfactory circumstances” entirely unsuitable given his very clear vulnerabilities. He was unable to take up the option of bail because there was no suitable placement for him in Ireland.
The issue in this hearing was mainly centred around the jurisdictional issues under the Mental Capacity Act 2005 of transferring a patient deprived of his liberty from Ireland to England. The applicant was asking the court to recognise and enforce the original Irish order, pursuant to paragraphs 20(1) and 22(1) of Schedule 3 of the MCA 2005. Schedule 3 allows for the international protection of adults and allows for the English courts to recognise and enforce protective measures which were issued by another jurisdiction.
HSE noted that Mr Justice Hayden had recently ruled on a similar matter in the case of HSE v Ellern Mede Moorgate  EWCOP 12 (https://www.bailii.org/ew/cases/EWCOP/2020/12.html). The facts of these two cases are very similar and as such counsel pointed to this ruling to act as guidance in this case. Hayden J said that the Court must consider several instruments, to ensure that P’s rights are not infringed: this includes the MCA, the Human Rights Act, and the Hague Convention on the International Protection of Adults (https://assets.hcch.net/docs/c2b94b6b-c54e-4886-ae9f-c5bbef93b8f3.pdf).
In the current case, Knowles LJ was satisfied that the conditions laid out by Hayden LJ were met and that all criteria were satisfied for the recognition and enforcement of the original Irish order, allowing P to be transported to his interim care facility and then finally his permanent care facility in England.
This hearing was unlike any I have seen in the Court of Protection thus far, as it was noted right at the start of the hearing that applications under Schedule 3 are not a common occurrence.
My experience of this hearing was that it exemplified the transparency of the court: access to the hearing was granted within 10 minutes of an email being sent, a very clear introduction to the case was made for our benefit (without a reminder being given), and an attendance sheet was also provided before the hearing. Furthermore, once the hearing was over, I quickly received a copy of the transparency order and was able to clarify what the order allowed in the same afternoon.
As a PhD researcher, with a focus on the Mental Capacity Act and patients unable to make their own decisions, it is always a useful experience to see the Court of Protection in action. This case expanded my personal knowledge of Schedule 3 of the MCA and how vulnerable adults from other jurisdictions can be treated under the provisions of the MCA. It was also interesting to note the brief discussion that was had at the end of the case, concerning the public purse and the fact that all treatment here in England would be funded entirely by Ireland. In my research, concerning end-of-life medical care, the Court is often very hesitant to discuss the funding aspects of treatment; however, as this was an inter-jurisdictional case, finances were much more relevant.
Adam Tanner is a PhD researcher in mental capacity law and tweets @AdamrTanner