Another Irish Schedule 3 case: “An oddity in the Court of Protection”

By Celia Kitzinger, 11th September 2024

She’s an Irish citizen in her early twenties, with schizophrenia and a “mild intellectual disability”, currently detained in an acute unit at an Irish psychiatric hospital under an order of the Irish Court.  It’s not an appropriate placement for her.  

Everyone agrees she needs a homely environment where she can practice and improve her living skills, but there’s nowhere in Ireland that can provide this with the level of security that’s also needed (she’s absconded from previous placements and been sexually exploited).

The President of the Irish High Court, Mr Justice Barniville, has made an order for her to move from Ireland, where she is ‘habitually resident’, to a placement in England that’s been identified as suitable.

The relevant legal framework is Section 63 and Schedule 3 of the Mental Capacity Act 2005 which give effect to the central provisions of the 2000 Hague Convention on the International Protection of Adults as a matter of English law.  

Two lawyers have written an ‘explainer’ blog which outlines the relevant law here: “Irish cases in the Court of Protection”; and we’ve also published a blog post reporting on another Irish Schedule 3 case we observed: “From Prison in Ireland to Care Home in England” a few years ago.

In cases like these, there is no requirement to provide capacity evidence – although  it was in fact made clear in this hearing that the evidence before the Irish High Court was that the young woman is a person who ‘as a result of impairment or insufficiency of [her] personal faculties, cannot protect [her] interests’  – which is how Schedule 3 defines what we’re used to thinking of in terms of s.2(1) Mental Capacity Act 2005 as someone who lacks capacity to make particular decisions due to an impairment of the mind or brain.  

Additionally, the Court of Protection is not free to conduct its own best interests assessment.  This is not a hearing about best interests.

Instead of making assessment of either capacity or best interests in the usual way, the court is restricted to checking that procedural requirements and basic rights have been complied with by the Irish (or other foreign) court. The ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited.

These cases are ‘an oddity in the Court of Protection’ and require “a very significant gear shift” for the Court. This was apparent in the hearing I attended.

The hearing

The case (COP 20001355) was heard before Mrs Justice Theis  on 12^th August 2024, sitting in the Royal Courts of Justice.  The judge and the lawyers were robed – i.e. wore their gowns and wigs.  The hearing lasted only 40 minutes and I got the impression that it would have been dealt with more quickly if I’d not been observing, since some of the explanation of the case and the relevant law seemed to be provided for my benefit as an observer. 

I was given a clear and helpful summary of the case by Henry Setwright KC, who (with Lucy Logan Green – both of 4PB Family Law Barristers) was representing the Health Service Executive (HSE) of Ireland in this case.  

I’ve watched this barrister before in similar hearings: he’s been described as “a go-to silk on international cases”.  He’s methodical, articulate and unhurried in his submissions, and lays out the law with admirable clarity – and I’m also grateful for the HSE’s Position Statement, which I have used to check the accuracy of this post. Having introduced the case with some care, he said: “That is a general outline of the process as is well-understood by My Lady, but it doesn’t happen so often that members of the public might understand”. 

The gist of the introductory material was an explanation of the role of the Health Service Executive of Ireland and assurances that the Irish legal framework “contains safeguards and deference to human rights which we say is really the equal of this jurisdiction and ensures – and did so in this case – that P is properly and fully represented and their voice is fully heard”.  This latter comment was significant because there was nobody to represent P in this hearing.

According to Henry Setwright KC, Schedule 3 allows the English court to recognise the Irish court’s order for compulsory detention “on strict conditions”.  Those conditions “have become synthesised to a high degree of sophistication in a checklist by Mr Justice Mostyn, which is made available to Irish judges and which they do consider, and that contains the points which English judges have been concerned to ensure are properly made up”.  This checklist is appended to a judgment which can be found here: Re SV [2022] EWCOP 52. 

The judge in this case went through the checklist and identified compliance of each point (e.g. P was an adult, P has an impairment in her mental faculties and cannot protect her own interests, P had a proper opportunity to be heard in Ireland, P would be at risk without protective measures in place, and so on).  If there is compliance with the checklist then, in effect, that’s all that’s needed or (I think) permissible under Schedule 3, and the Court of Protection should normally go ahead and implement the Order.  

Once the Order is implemented, the Irish court will continue to “maintain a very close continuing watch” on P, and the English Order lasts for as long as the Irish Order lasts.  Counsel added that “when P is based in England there is no charge on the NHS for English tax-payers.  The Irish pay.”

In her judgment, Theis J gave a little more background: “P has had a history of mental health difficulties, having moved between her parents’ home, various residential placements, and supported living.  She’s engaged in risk-taking behaviour and substance misuse.  She has been exposed to chaotic childhood experiences….”  The judge then went through the “Mostyn checklist”, in the course of which she relayed P’s own views about moving to a care home in England: “she’s understandably anxious but is keen to know more and interested to ask questions about when she will move and times of flights.  She has had  a very proper and effective opportunity to be heard before the High Court of Ireland, so there is no necessity for this court to consider whether she should be joined or heard in this court”.    The judge made the order as drafted. And that was that.

Reflections

It’s an odd experience to watch these hearings – I think this was the third I’ve observed.  They seem, by comparison with the usual standards in the Court of Protection, terribly cursory and not very person-centered.  I understand the reasoning that this is because the more usual process (or the Irish version of it) has already been done in the Irish court and this is simply about getting arrangements authorised cross-nationally.  On that basis, it would be terribly wasteful of everyone’s time, and create unacceptable delay, to go through the whole process all over again in a second (English rather than Irish) court – hence a relatively straightforward checklist rather than a full hearing. And the English court can decline, and has done previously, if the checklist isn’t complied with (as described here: “Irish cases in the Court of Protection”). But from the point of view of observers, it does require us to trust that the Irish hearing (which of course we haven’t seen) was just and fair.  I have no reason to think that it wasn’t – in this case or any other – but the whole point about the Open Justice Court of Protection Project, of course, is that we don’t take the justice system (any justice system) on trust alone: that’s why we’re observing.  So, these are frustrating hearings to observe from that perspective: they’re at one remove from where the actual decisions about what’s best for P – the decisions we really want to observe – are being made.

Those interested in learning more about these cases might like to read the article by Alex Ruck Keene KC (Hon) and Chiara Cordone (“Distributed rights protection”) published in the International Journal of Law and Psychiatry, which engages with some of the challenges and opportunities they present.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 560 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)