Cross-jurisdictional challenges and Schedule 3 in a case of anorexia: Health Service Executive of Ireland v SM [2024] EWCOP 60

By Sydney White, 11^th November 2024

This case (COP 13398706) concerns a young woman (SM) with a diagnosis of anorexia nervosa and a history of depressive episodes. 

She’s “habitually resident” in Ireland but has for some time been receiving treatment at Ellern Mede, a specialist eating disorder provider in England. Hayden J has heard this case before and issued an earlier judgment: Health Service Executive of Ireland v Ellern Mede Moorgate [2020] EWCOP 12.   

SM has remained in England since the 2020 judgment, with regular authorisation of her continued deprivation of liberty – of which this is the most recent. There is also a published judgment arising out of this hearing: Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3).

At the hearing I observed on 24^th October 2024, the applicant, the Health Service Executive of Ireland (HSE), was represented by Henry Setright KC and Steve Broach KC (although the latter was not in court). The Irish High Court, finding that SM continues to lack capacity to make decisions regarding her treatment, had made an Order on 14^th October 2024 that she should continue to be treated by Ellern Mede in England.  Henry Setright KC brought that Order — a “protective measure” under the Hague Convention — to the Court of Protection under Schedule 3 of the Mental Capacity Act 2005, which gives effect to the Hague Convention on the International Protection of Adults 2000, so that the Order could be recognised and enforced in England. (The mechanics of Schedule 3 are explained in greater detail in Hayden J’s recent judgment – §§13-23, Health Service Executive of Ireland v SM [2024] EWCOP 60 (T3)) – and also in Open Justice Court of Protection Project blog posts (e.g. Irish cases in the Court of Protection and Another Irish Schedule 3 case: “An oddity in the Court of Protection”).  

Hayden J was obviously somewhat uncomfortable with what he was being required to do.  He found it “disturbing” (he said) that he’s “been making orders depriving [SM] of her liberty continuously since 2019, from late adolescence into young adulthood”.  It seems he would have liked more information about SM before continuing to make another such order, but there is a limited jurisdictional basis on which an English judge can revisit the findings of the Irish Court. 

The hearing took about two hours, and Mr Justice Hayden did decide again to recognise and enforce the Irish Order – on the basis that he would receive from the HSE by 21st November 2024, a report describing SM’s current life, presentation and day-to-day routine, and a report from a psychiatrist evaluating SM’s capacity to make decisions regarding her treatment, including a reasoned analysis justifying the maker’s conclusions “to include inter alia consideration of the test pursuant to s.1 of the Mental Capacity Act 2005, and whether the presumption in English law of [SM] being capacitous has been displaced” (Recital K: Approved Order of the court, 25^th October 2024).   The judge said in court that he was “not anticipating an extensive report, but I think given the length of time she’s been under the restrictive regime of my Order, I would like to be reassured on these points – respecting my obligations under s.5 and acknowledging the force of comity in this area”.  

Furthermore, Hayden J’s Order recognising the protective measures of the Irish High Court “shall apply to further orders made in Ireland to the extent that they extend the duration of the protective measures contained in the said Order of 14 October 2024, without need for further application to the Court of Protection”.  This may be a response to Henry Setright’s report that “SM’s anxiety and condition deteriorate proximate to hearings… hearings cause a deterioration”.  

Cross- jurisdictional approaches in the courtroom

As is typical of Schedule 3 cases, SM was not a party to the case, so all exchanges in court were between the HSE’s representative (Mr Setright) and the judge. It can definitely be said that the Order from the Irish court was not “rubber-stamped” – as some have feared might be the case.

Mr Setright’s composure and strong arguments were impressive, especially during Hayden J’s scrutiny of the Irish court’s approach to establishing patients’ capacity – a scrutiny he pursued with some rigour while saying, “Please don’t think in investigating it in this way I intend any disrespect to the Irish High Court judges…. I have the greatest respect for… their experience in this sphere”.^[1]

Hayden J drew attention to the fact that the Irish order emanated from the inherent jurisdiction of the High Court:

Judge:  In Ireland it’s the inherent jurisdiction. That wouldn’t be the case here, by virtue of the MCA.

Setright:  Developments in Ireland tend to replicate, or are similar to (I shouldn’t suggest imitation) the provisions of the Mental Capacity Act….

Judge:  I know the great interest Irish judges take in the MCA, as many judges throughout Europe do, and I mean no discourtesy to other judges that, flexible though the inherent jurisdiction is, the discipline of the MCA is not there.  It’s a slightly amorphous concept, the inherent jurisdiction. And one of my concerns is that it’s paternalistic in its complexion. And I found myself wondering whether there was an element of paternalism here, at least sufficient for me to investigate.

Later, there was this exchange:

Judge:  The whole of the inherent jurisdiction has coursing through it a paternalistic element.

Setright: That is the English inherent jurisdiction

Judge: I see it in the Irish inherent jurisdiction as well, and why would it be otherwise.  It is there in parens patriaalmost by definition.

Setright: The HSE would encourage Your Lordship not instinctively to elide the Irish and English inherent jurisdictions.

Judge: I’m not “instinctively” doing it.

Setright: Forensically, then.

Judge:  But when I read the Irish inherent jurisdiction judgments, they remind me of the English inherent jurisdiction for which we are criticized and I think rightly so.

Setright: The English team here is concerned to bring home to our Irish counterparts that paternalism in that way is simply not a feature of the Irish jurisdiction.

Hayden J takes a somewhat different approach in the published judgment: “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.” (§29)

It is “human instinct”, said the judge, “to want to keep a talented young person at the centre of the process alive, nourished and hydrated – there’s a human instinct to want to feed”, but against this “autonomy is vigilantly to be guarded”.  He raised, in particular, a concern with the possibility that SM’s apparent acquiescence to treatment is “learned helplessness” (a term used about SM by a consultant psychiatrist, see §25 and §26 of the published judgment). 

The judge did not seem convinced that the Irish courts had done all that was necessary—or all that should be done—to displace the presumption that SM has litigation capacity and subject matter capacity. He stated that:

“It’s obvious that the Irish court evaluated capacity on the balance of probabilities test. That’s old habit. We in this jurisdiction start with the presumption of capacity and have to displace that on the balance of probabilities. Those two tests are sometimes conflated in this jurisdiction, but this case reveals a clear difference of approach, I think”

This comment emphasises the importance (for Hayden J) of the presumption of capacity enshrined in the Mental Capacity Act 2005, which, for the English courts, can be displaced only by a careful application of the test in ss. 2 and 3. In his written judgment, Mr Justice Hayden states “this fundamental safeguard is the gateway to the jurisdiction of the MCA”.  

“The question”, said Hayden J in court, “is whether there’s any difference evidentially between what’s needed to displace the presumption of capacity [the English approach] and what’s needed to establish incapacity on the balance of probabilities [the Irish approach]”.

It was perhaps unsurprising, therefore, that Mr Justice Hayden heavily scrutinized the decision of the Irish courts. He said that he has “not heard any analysis of how they came to [their] conclusion” on SM’s lack of capacity, and brought up some evidence that suggested (to Hayden J) that SM may in fact have capacity. This point made it into the published judgment: “SM’s recognition of the benefit of treatment at Ellern Mede and her careful navigation of the issue of consent also show indications of, at very least, some degree of capacity…in this sphere”(§27).

Although Mr Setright emphasised the importance of a cooperative relationship between the two jurisdictions, Mr Justice Hayden held that “however cooperative it may be, I want to see what [their decision] is rooted in”. These comments reflect the tension that arises in Schedule 3 cases, when the Court of Protection cannot conduct its own assessments but must rely on those of the Irish courts. 

And even if Hayden J were to find a difference between Irish and English approaches to capacity in this case, the court would nonetheless be bound to accept the Irish finding of fact on capacity unless (for example – as Mr Setright pointed out) it would be “manifestly contrary to public policy to proceed…”.  He said: “It doesn’t follow, as night follows day, that a different approach would result in a public policy consideration: it may do. It may not”.  Nonetheless, he was keen to “allay the court’s concern” and to reassure the judge that the capacity decisions from the Irish court were “sufficiently in keeping with the English model as not to involve a public policy exception”. This argument appears in Hayden J’s judgment at §36.

I was fascinated to observe the judge’s dissatisfaction with not being able to communicate with SM directly, and his determination to ensure that her lack of capacity had been properly established. 

At the same time, in his written judgment, Mr Justice Hayden quoted what he himself had said in the previous judgment in this case, where he held that the “striking benefit” of the Schedule 3 regime is that “it provides clarity of responsibility. There is a clear, unbroken chain of command from patient to court. It also provides an avoidance of ‘jurisdictionalconfusion’. which ought always to be regarded as inherently dangerous” (§23). In a way, therefore, the ‘clash’ of jurisdictions is to be welcomed because it makes the jurisdiction under which the case ultimately falls abundantly clear. 

Schedule 3 and Anorexia Nervosa Cases

The tensions that arise in Schedule 3 judgments seem to be exacerbated in cases concerning patients with anorexia nervosa. Treatment of anorexia often involves extreme intrusion into bodily integrity, including long periods of compulsory feeding under restraint. Mr Justice Hayden stated that this area is “so often incredibly delicately balanced and the one area of the Court of Protection in which I hear the most conflicting evidence”. Anorexia patients are often ‘on the cusp’ of having capacity and the decision depends on a plethora of medical and non-medical evidence. The Court of Protection’s lack of access to this evidence due to the operation of Schedule 3 was frustrating, both for Mr Justice Hayden and for me as an observer. 

Considering the delicate balance in this area, the reports that Mr Justice Hayden requested regarding SM’s day-to-day circumstances are to be welcomed. I see them as essentially a caveat to his enforcement of the Order; the Order is recognised on the basis that Hayden J will receive evidence which satisfies him that SM does lack capacity to decide her own treatment. Indeed, in his written judgment, the judge held that he was obliged to do so under the Human Rights Act 1998. It is encouraging to see Court of Protection judges recognising, as Mr Justice Hayden did, that “autonomy is vigilantly to be guarded” when applying Schedule 3 of the Mental Capacity Act. 

Sydney White is currently undertaking her MPhil (Master of Philosophy) in Medical Law at the University of Oxford, having recently graduated from Oxford’s undergraduate law program. Her dissertation will focus on the Court of Protection’s approach to best interests assessments for patients with anorexia nervosa under the Mental Capacity Act 2005. Her fascination with Medical Law brought her to the Open Justice Court of Protection Project.  She has previously published this blog post: Respecting autonomy in treating Anorexia Nervosa.  She can be found on LinkedIn at www.linkedin.com/in/sydney-e-white, on Twitter/X @sydwhiteCOP and on Bluesky@sydneywhite

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^[1] _{Direct quotations were checked with Celia Kitzinger, who also observed this hearing, and we believe them to be correct, based on our contemporaneous notes.  Since we are not allowed to audio-record court hearings, however, they are unlikely to be 100% verbatim.}