The Health Service Executive of Ireland v Ellern Mede Moorgate
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] EWCOP 12 |
| Date | 11 March 2020 |
| Docket Number | Case No: 13398706 |
| Court | Court of Protection |
[2020] EWCOP 12
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13398706
Mr Henry Setright QC, Alexander Ruck Keene and Katherine Barnes (instructed by Bindmans LLP) for the Applicant
Hearing dates: 12 th February 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of SM and members of SM's family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This case requires consideration of whether the necessary criteria are met for the recognition and enforcement of protective measures contained in an order made by the Irish High Court on 4 th February 2020. The order was made by the President of the Irish High Court on the application of the Health Service Executive of Ireland (“HSE”). The order authorised the transfer for treatment of SM, a 19-year-old Irish girl, to Ellern Mede Moorgate (“Ellern Mede”), a specialist hospital with a high dependency unit in the North-East of England. The consensus before the Irish Court was that SM requires a placement which can stabilise her general mental health before treating her underlying condition.
In this application, the HSE seek the recognition and enforcement of the protective measures contained in the Irish Order of 4 th February 2020 to transfer SM to Ellern Mede for what is said to be “ extremely urgent treatment”, pursuant to the provisions of Schedule 3 to the Mental Capacity Act 2005 (“MCA”). Neither the question of SM's capacity, nor the urgency of treatment, is contentious. However, Mr Setright QC, Mr Ruck Keene and Ms Katherine Barnes, who appear on behalf of the HSE, have invited me to consider and approve the legal framework, both in relation to the transfer and in the context of a proposed ‘detailed and structured review’ by the Irish High Court.
There are plainly important issues concerning the liberty of SM and how they can most effectively be safeguarded across the jurisdictions. Whilst Ireland has many centres of medical excellence, specialist units, such as the one contemplated here, and more generally concerning the treatment of serious eating disorders, are in short supply. This is one of a number of cases in which similar arrangements have been made.
FACTUAL BACKGROUND
SM has a diagnosis of anorexia nervosa and a previous history of moderate and major depressive episodes. She is presently an in-patient at Springfield University Hospital (“Springfield”) in London, having been transferred there from St James' Hospital in Dublin on 13 th March 2019. SM has been assessed as lacking capacity to consent to or refuse medical treatment. The most recent evidence in this regard is set out in the affidavit of Dr John O'Mahoney, Executive Clinical Director of the HSE and a specialist psychiatrist, dated 3 rd February 2020. Dr O'Mahoney reports that SM's capacity is “significantly compromised by her disordered thinking so that she is not capable of capacitously agreeing to treatment”. There is an earlier and similarly detailed assessment, dated 28 th January 2019, undertaken by a Dr Kingston, a consultant psychiatrist at St James' Hospital.
Having concluded that SM lacked capacity relating to her medical treatment, the President of the Irish High Court made SM a ward of court and appointed Ms Patricia Hickey, the General Solicitor, as her ‘committee in wardship’, acting independently of the HSE. The objective was to ensure that SM's rights and best interests are protected in the Irish proceedings. Ms Hickey's role is, as I understand it, similar to that of the Official Solicitor in this jurisdiction.
On 27 th February 2019, the Irish High Court made an order authorising SM's admission and treatment, until further order, at Springfield. It is important to note that the Order of 27 th February 2019 records that, having considered “ the suite of evidence before it”, the High Court was satisfied: SM's diagnoses and condition prevented her from having mental capacity to consent to care and treatment; protective measures were required to safeguard SM's health and safety in her best interests; and, as the kind of specialist treatment required was not available in Ireland, treatment at Springfield in England was in SM's best interests.
On 5 th March 2019, the HSE made an application for recognition and enforcement to the High Court (Family Division) in London. This was approved by Mr Justice Newton on 8 th March, facilitating the transfer on 13 th March.
SM's condition has deteriorated significantly since moving to Springfield. As set out in the report of Dr Giovanni Galavotti, the Lead Clinician and consultant psychiatrist, dated 17 th January 2020. SM's initial weight gain at Springfield was accompanied by a deterioration in her mental condition. SM is said to experience regular flashbacks and dissociative states. She has attempted suicide on a regular basis:
“ [SM] is attempting to strangle herself every day with anything she can use as a ligature, including her clothes which have to be cut to free her from the ligature. This has now caused the added problem that SM sometimes runs out of clothes and needs to wear disposable hospital gowns.”
It has been necessary for SM to be fed nasogastrically as she has lost motivation to seek to restore her weight. I am told that although SM does not need to be restrained, it is necessary for several staff members to keep her in position whilst feeding. The reasons for SM's deterioration are unclear. It seems the clinicians working with her have speculated that it may be linked to allegations she has made since arriving at Springfield concerning sexual abuse which she asserts that she suffered as a child. Dr Galavotti's explains that, over Christmas 2019, SM told her parents that she had been the victim of sustained abuse by an adult when she was a child. Dr O'Mahoney's affidavit also refers to SM having made allegations of a similar complexion during the period of her placement at Springfield.
Dr Galavotti's report ends with a request that SM be moved to another specialist placement as a matter of urgency as the treating team at Springfield no longer feels able to meet the expectations of SM and her family in terms of progression and on-going care. He also considers there would be no value to extending SM's placement at Springfield as she is too unwell to engage with any of the therapies on offer.
As a result, on 3 rd February 2020, the HSE filed a notice of motion with the High Court in Ireland seeking an order permitting the transfer of SM from Springfield to a new placement at Ellern Mede, also in England, for further detention and treatment. The motion was supported, in particular, by a detailed affidavit from Dr O'Mahoney.
Dr O'Mahoney's evidence confirms the view of SM's treating clinician that Springfield is no longer able to meet her needs and that SM is extremely distressed. For example, and in addition to SM's sustained, repeated attempts to commit suicide, Dr O'Mahoney refers to SM having to spend extensive periods in a padded room, being unable to tolerate having even a bed (SM's father having given evidence that SM had formed a view that she did not deserve one), engaging in extreme self-harming behaviours and being selectively mute. Consequently, Dr O'Mahoney explains that he has been urgently investigating an alternative placement for SM and has found what he considers to be a suitable placement for her at Ellern Mede. In summary, this placement is considered appropriate because it offers a high dependency unit akin to psychiatric intensive care. Dr Hind Al-Khairfulla, the Medical Director at Ellern Mede, has assessed SM and agreed to accept her as of 17 th February 2020. Springfield has agreed to retain care of SM until that date on the strict understanding that SM will be transferred on 17 th February 2020 without delay.
The President of the Irish High Court considered the HSE's application at a hearing on 4 th February 2020 at which the HSE, SM's parents and SM were all represented. SM was represented by Ms Hickey, who continued (and continues) to act as her committee on the basis that SM “lacks the capacity to litigate”. As recorded in the transcript of that hearing, SM's parents were fully supportive of the application, as was Ms Hickey. As for SM's expressed views, communicated to the court on her behalf by her committee, although she had previously supported a move to Ellern Mede, at the time of the hearing her expressed preference was for an alternative placement in England known as the Schoen Clinic. This was because SM expressed that she felt that the trauma underlying her other difficulties could be effectively treated there.
Mr Justice Kelly, the President of the Irish High Court, granted the HSE's application and made an order, dated 4 th February 2020, authorising SM's transfer to and treatment at Ellern Mede, with the matter to come back before the Irish High Court for an “ intensive review” on 24 th March 2020. In so doing, he took express account of SM's preference for the Schoen Clinic. However, he found that, unlike Ellern Mede, which was the clinical recommendation of Dr...
To continue reading
Request your trial
-
Aberdeenshire Council v SF (by her Litigation Friend, the Official Solicitor)
...are not fully capable of acting for themselves.” 16 I have also been assisted by Hayden J's judgment in HSE of Ireland v Moorgate [2020] EWCOP 12. At paragraphs [34] and [35] he said, “[34] As Baker J properly recognised, there may be a range of decisions made under the laws of different ju......