Capacity in Cross Border Cases

This question fell to be determined by the Court of Protection in The Health Service Executive of Ireland v SM (2024) EWCOP 60.

The case concerned an application for recognition and enforcement of an Order made by the Irish High Court providing for treatment of an Irish citizen at an English mental health facility which was deemed vital to her health and welfare and therefore plainly in her best interests.

The Court of Protection noted however SM’s capacity had fluctuated over a period of 6 months and may continue to do so. It was therefore necessary to direct an up to date assessment of SM’s ability to understand and consent to continuing treatment.

Pending receipt of this evidence, the Court of Protection was able to recognise and enforce the orders of the Irish High Court.

This case highlights some of the challenges present in the minefield that is capacity, confounded by the additional complexities involved with different jurisdictions. We have highlighted the various challenges facing the legal sector when dealing with elements of capacity along with some of the potential solutions.

Jurisdictional Ambiguity

Determining jurisdiction is a significant challenge in cross-border capacity cases due to the lack of a clear definition of "habitual residence" under the Mental Capacity Act (MCA) 2005. This ambiguity becomes particularly problematic when dealing with individuals who are refugees, displaced, or whose habitual residence cannot be determined. In such cases, the 2005 Act defaults jurisdiction to England and Wales. Moreover, the Court of Protection may claim jurisdiction over individuals habitually resident in another country if they own property in England and Wales. This can create jurisdictional overlaps or conflicts with foreign legal systems.

Recognition of Foreign Protective Measures

Schedule 3 of the 2005 Act allows for the recognition and enforcement of protective measures issued in foreign jurisdictions. However, the Court of Protection’s role is limited to ensuring that these measures comply with procedural and substantive rights, rather than reassessing their merits or the individual’s best interests. Balancing the respect for foreign legal decisions with ensuring adherence to due process and public policy adds to the complexity of these cases.

Impact of Non-Ratification of the 2000 Hague Convention

The UK’s partial adoption but non-ratification of the 2000 Hague Convention creates a dual-layered challenge. Domestically, the Convention’s principles apply under Schedule 3, increasing the likelihood of recognizing foreign Lasting Powers of Attorney (LPAs). However, internationally, the lack of ratification means that LPAs or protective measures established in England and Wales are not guaranteed recognition abroad. Similarly, foreign measures are not automatically valid in England and Wales, with decisions left to the discretion of individual jurisdictions. This inconsistency fosters uncertainty, particularly for individuals with assets or personal connections in multiple countries.

Differing National Approaches to Capacity and Guardianship

Countries vary significantly in their approaches to guardianship and capacity protections. For example, Sweden employs a unique and nuanced system of guardianship that may be unfamiliar to English courts. This variation poses difficulties when English courts are required to apply foreign legal frameworks while ensuring consistency with domestic principles. Such cases often demand additional expertise and resources to navigate the differences effectively.

Complexity of Deputyship in Cross-Border Contexts

While LPAs can be relatively easily validated across jurisdictions with minor modifications, deputyships are far more complex in a cross-border context. Foreign courts often insist on reassessing the appropriateness of deputyship orders from England and Wales, effectively restarting the process. This results in increased delays, costs, and uncertainty for those seeking cross-border enforcement of deputyship arrangements.

Challenges in Urgent and Emergency Situations

The 2000 Hague Convention provides emergency provisions that allow temporary protective measures to be implemented in the jurisdiction where the individual is present. However, these measures are limited and lapse once a state with a stronger personal connection takes over. Coordination between jurisdictions in such urgent situations is often inconsistent, leading to delays in providing the necessary protections.

Aging Populations and Growing Cross-Border Mobility

The global increase in aging populations and cross-border mobility is further complicating the management of incapacity. Without a clear international framework, such as a fully ratified Hague Convention, courts are left to navigate these issues on a case-by-case basis. This trend highlights the pressing need for improved legal cooperation and clarity in managing cross-border capacity issues.

Recommendations and Practical Solutions

To mitigate these challenges, individuals are advised to plan proactively, particularly by creating LPAs that comply with the laws of all relevant jurisdictions. Despite this, courts will continue to face difficulties without a robust international framework. Ratifying the 2000 Hague Convention would streamline cross-border processes, but until this happens, outcomes will depend heavily on case-specific negotiations and collaboration between legal systems.

Improved international cooperation, alongside clearer legal frameworks, is essential to address the growing complexity of cross-border incapacity cases effectively.

Craig Evans is a Partner in International and Travel Claims and Gemma Quinn is a Legal Director, both in the catastrophic and large loss injury team based in Manchester and respective leads of the Cross Border and Court of Protection subject matter groups.