13 June 2018
Foreign orders in respect of vulnerable people: enforcement in England and Wales
The jurisdiction of the Court of Protection to recognise and enforce a foreign protective measure under Schedule 3 Mental Capacity Act 2005 has recently been clarified by the Court. In The Health Service Executive of Ireland v TA and others  EWCOP 38 the Court heard an application relating to three vulnerable individuals habitually resident in Ireland but detained in England because no suitable facilities were available for them in Ireland. Although they could be detained in England under the Mental Health Act 1983, the Irish High Court wished to retain jurisdiction over them so that future decisions about their care could be made in Ireland.
Baker J held that Schedule 3 Mental Capacity Act 2005 implemented duties to recognise, enforce and implement protective measures for vulnerable adults imposed by foreign courts, even where the foreign court is not in a country which has ratified Hague Convention 35 on the International Protection of Adults 2000. Neither the English nor the Irish have ratified the Convention. Noting that the Court has a discretionary power to enforce recognition of a foreign protective measure (ie the order of the Irish Court), the inclusion of Schedule 3 in the MCA recorded the intention of Parliament to facilitate the recognition and enforcement of foreign protective orders as a general matter. Although there were other sections of MCA 2005 that could appear to conflict with laws and procedures in a foreign state, the Court could only exercise its discretion to refuse recognition on limited grounds – breach of procedural safeguards or public policy. It was not enough to show that another provision of the MCA appeared to be in conflict.
The Judge also helpfully commented that the Court of Protection Rules should be amended as soon as possible to incorporate comprehensive rules to support Schedule 3 applications, including rules on the allocation of hearings. In the meantime, Schedule 3 applications should be listed before a full High Court Judge first and any further hearings or applications of the matter should be heard by the same Judge, unless otherwise ordered.
As applications for recognition of foreign protective measures under Schedule 3 are becoming increasingly common before the Court of Protection, the need for rules setting out the methodology for Schedule 3 applications is becoming increasingly urgent.
Court of Protection appoints deputy residing outside its jurisdiction
In Re: DGP  EWCA 58 the Court of Protection appointed a deputy for property and affairs whose habitual residence was outside the jurisdiction of the Court. In considering the Deputy's application, Senior Judge Lush held the fact that an individual lived outside the jurisdiction should not be an impediment to her appointment as deputy if, in all other respects, she was the most suitable candidate and her appointment was in the incapable person's best interests. The decision is of particular interest because, as Senior Judge Lush noted, it had been a commonly held understanding that the Court would not appoint a deputy who was habitually resident outside the jurisdiction.
There had not been any recent decisions on the issue in England and Wales, however Senior Judge Lush noted a decision of the Ontario Court of Justice [Quinn v O'Neill (1992) 47 ETR 18] in which the Court held that there was no longer a basis for opposing appointments of those outside the jurisdiction, given the advances in technology and travel, and the requirement to post a security bond.