The Health Service Executive of Ireland v PA and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker |
| Judgment Date | 03 June 2015 |
| Neutral Citation | [2015] EWCOP 38 |
| Docket Number | Case Nos: 12592061 12258791 |
| Court | Court of Protection |
| Date | 03 June 2015 |
[2015] EWCOP 38
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF PA
AND IN THE MATTER OF PB
AND IN THE MATTER OF PC
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case Nos: 12592061
1262687T
12258791
Henry Setright QC, Alexander Ruck Keene and Victoria Butler-Cole (instructed by Bindmans LLP) for the Applicants
Helen Curtis (instructed by Miles and Partners LLP) for PA
Aswini Weereratne QC (instructed by Scott-Moncrieff and Associates Ltd) for PB
Annabel Lee (instructed by Capsticks LLP) for St Andrew's Healthcare
David Rees (instructed by the Official Solicitor) as Advocate to the Court PC was not present or represented
Hearing date: 6 th March 2015
Introduction
This reserved judgment is delivered following a hearing of three cases in which the Health Service Executive of Ireland ("the HSE") seeks orders under s.63 of and Schedule 3 to the Mental Capacity Act 2005 ("MCA 2005") recognising and enforcing orders by the Irish High Court for the detention of three young persons ("PA", "PB", and "PC") at a special unit known as St Andrew's in Northampton. The proceedings raise a number of issues about the scope and interpretation of Schedule 3. When it became known that applications in the cases of PA and PB were coming before the Court, raising very similar issues, a joint hearing was arranged, and directions given, including an invitation to the Official Solicitor to act as Advocate to the Court and to the Ministry of Justice and the Department of Health to participate in the proceedings. The former invitation was accepted, the latter was declined, although the Ministry of Justice wrote a letter setting out some views on the legal and policy issues arising in the proceedings, to which I shall refer below. Subsequently the case of PC, in which I had earlier made an order under Schedule 3 without hearing extensive legal argument, was listed for review at the same hearing.
Summary of Background: (1) PA
PA was born on 24th October 1996. He had an extremely troubled childhood and mental health difficulties which manifested themselves from an early age. On 26 th February 2010, he was placed in emergency voluntary foster care and thereafter moved placements within Ireland on no less than twenty occasions. Each placement broke down due to his challenging behaviour. An Irish care order was granted in respect of him on 3 rd March 2011 because of his escalating problematic behaviour and criminal activity, as a result of which PA was considered to be a risk to himself and others, and he was placed in a special care unit. Continuing concerns were raised about his behaviour, including threats to harm others and himself and statements that he was bored of assaulting people and would like to see someone murdered. It was then decided to move PA to a privately run secure care unit in Scotland but that unit felt unable to work with him as a result of his levels of aggression and non-cooperation. Instead, he was referred to St Andrew's Healthcare in Northampton.
On 4 th October 2011, PA was transferred to St Andrew's pursuant to an order granted by Birmingham J in the Irish Court on 30th September 2011. Prior to the order being made, the procedure under Article 56 of Council Regulation 2201/2203 ('Brussels IIR') was undertaken and the requisite consent obtained from Northamptonshire County Council. All parties to the ongoing proceedings before the Irish Court were in agreement that PA's placement at St Andrew's was in his best welfare interests. On arrival at St Andrew's, he was admitted under the provisions of s.2 Mental Health Act 1983 ('MHA 1983'). On 18 th November 2011, his detention was reviewed by the First-Tier Tribunal (Mental Health). The tribunal discharged PA from section. Whilst noting that PA undoubtedly required assessment in hospital and declaring themselves satisfied that he would pose a risk to others were he not in hospital, the tribunal considered that detention under s.2 MHA 1983 was neither warranted nor justified because, in essence, PA was detained at St Andrew's by virtue of the Irish order.
Thereafter, PA has continued to reside and be treated at St Andrew's, his position being considered on a regular basis by Birmingham J until his elevation to the Irish Court of Appeal, his position being considered thereafter by other judges of the Irish High Court. For a substantial period after his admission, PA continued to manifest extremely challenging behaviour. On one occasion, riot police were summoned to attend the unit after he and another minor acquired makeshift weapons and smashed a number of light fittings. On 1st March 2012, PA, together with other (English) individuals escaped from St Andrew's after threatening staff with broken CD cases. The HSE's legal representatives sought and obtained an urgent English order under the provisions of Article 20 of Brussels IIR on the night of 1st March 2012. That order was renewed following personal attendance by Leading Counsel on 2nd March 2012. PA was found and returned to St Andrew's on 3rd March 2012.
PA's case was further considered by Birmingham J on 17th May 2012 at which point the learned judge made an order providing for his continued detention and treatment at St Andrew's. That order was made the subject of an application for recognition and enforcement in this country under the provisions of the Family Procedure Rules, Part 31. On 23rd May 2012, sitting in the Family Division, I made an interim order under the provisions of Article 20 of Brussels IIR pending registration of the order of Birmingham J, which took place on 1 June 2012 by order of Senior District Judge Waller.
In due course, PA was diagnosed as suffering from 'bipolarism' and a serious personality disorder. For a prolonged period thereafter, he remained extremely difficult to manage and engage in treatment and his behaviour was defiant and frequently violent. At one stage, he had to be secured and nursed on a 3:1 ratio in a separate ward from his peers to protect them from serious injury. He was also for a sustained period of time highly resistant to treatment and intervention. In the course of 2014, however, PA became more open to intervention and treatment and thereafter he has managed to maintain himself on risk level 4. This allows him to have some escorted trips into the community. In particular, he has been able to return to Ireland for the first time since he went to Scotland in May 2011, and as a result attended the High Court in Ireland on 7th October 2014 and visited his family home on 20th October 2014.
The evidence before the High Court in Ireland is that he remains a very vulnerable young man. In the view of Dr Kelleher, the psychiatrist responsible for providing mental health services for people in his local area in Ireland, there are no facilities in the Republic of Ireland for PA which would replicate those available at St Andrew's. It is therefore the view of the HSE that his interests are best served by him remaining in St Andrew's for another period of time, subject to regular reviews. The intention of the HSE is that PA will ultimately return to Ireland and his case will continue to be kept under review by the High Court in the Republic of Ireland.
Whilst PA has expressed his willingness, in principle, to remaining at St Andrew's for a further period of time, his compliance is of relatively recent standing. The orders made by Birmingham J when PA was a child expired upon his majority, as did the consequential 'domesticated' order in England and Wales. The HSE therefore took steps to obtain an order from the High Court in Ireland under its inherent jurisdiction in respect of vulnerable adults providing for his continued placement and treatment at St Andrew's for a period of time pending his return to Ireland. In that order, dated 23 rd October 2014 (i.e. the day before his 18 th birthday), the President of the Irish High Court recorded his findings, inter alia, that PA was suffering from a serious personality disorder accompanied by 'bipolarism' which continued to require treatment at St Andrew's; that his illness was of a kind and degree that was likely to continue after his 18 th birthday and require a period of compulsory treatment; that on the evidence of his treating clinician at St Andrew's he met the criteria for detention in England under s.3 of the MHA 1983; and that PA "owing to an impairment of his personal faculties cannot protect his own interests". The order recorded that the Court was satisfied that there was no suitable facility available within the jurisdiction of the Irish Court and that St Andrew's was a suitable institution for the purposes of providing treatment to him. The Court therefore ordered that the HSE be authorised and permitted to place him at St Andrew's for a period of four weeks subject to review and further order of the Court.
On 4 th November, an urgent telephone hearing took place before me sitting in the Court of Protection at which I granted a time-limited order recognising and enforcing the Irish order of 23 rd October. On 13 th November, a psychiatrist at St Andrew's certified that PA had litigation capacity. Within these proceedings, he has therefore instructed legal representatives directly and the HSE has agreed to...
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