Summary
Facts
Jurisdiction under Schedule 3 of the Mental Capacity Act 2005
Limited application of best-interests test
Comment
A recent judgment provides helpful guidance on the approach that an English court should take - and the extent and role of the test of a patient's best interests - in cases where a foreign court has jurisdiction and has ordered a particular course of action in relation to an adult lacking mental capacity.
In Re MN [2010] it was held that when deciding whether to recognise and enforce a protective measure taken or ordered by a foreign court, the English court should consider the adult's best interests only in relation to the implementation of the order, and should not carry out a full best-interests enquiry into the person's welfare.
This is the first time that consideration has been given to an English court's approach to its own jurisdiction under Schedule 3 of the Mental Capacity Act 2005 (which indirectly implements the Hague Convention on the International Protection of Adults). Although welcome, the judgment is unlikely to be the last word on this issue.
In July 2010 MN was 89 years old. She had been born in the United Kingdom, had moved to the United States after marrying and had lived in California from 1956 until May 2009. She had not taken US citizenship. In 2000, after the death of her husband, she was left with an estate worth approximately $19 million.
In 2004 MN made an advance healthcare directive, at a time when she had capacity (this was not disputed).
MN appointed her niece, PLH, who was resident in the United Kingdom, as her agent. MN's directive stated that she wanted to live in her home, in California, for as long as possible or - if her financial position, health or safety were at risk - as near to her home as possible.
MN had lost capacity by May 2009. She was removed from her Californian home by PLH and was brought to live in the United Kingdom.
In April 2010 the Californian court appointed a conservator to MN's estate, decided that the directive reflected MN's wishes, removed PLH as MN's agent and ordered MN's return to California.
An application was made to the Court of Protection to enforce the Californian order. It was against this set of facts that Schedule 3 of the act and the role of the High Court came to be considered.
Jurisdiction under Schedule 3 of the Mental Capacity Act 2005
The judge held as follows:
- The question of whether the High Court had jurisdiction depended on whether MN was habitually resident in England or in California. This point turned on whether PLH had authority to remove MN from California or whether her removal was wrongful or unauthorised.
- If MN was habitually resident in England, the High Court had full jurisdiction. The High Court could not recognise and enforce the Californian order and would be obliged to carry out a full best-interests enquiry to decide whether it was in MN's longer-term best interests to return to California.
- If MN was not habitually resident in England, the Californian court had jurisdiction. The High Court would only be required to recognise and enforce the foreign order (unless this were manifestly contrary to public policy). It would not be obliged to carry out a full enquiry into MN's best interests and would consider such best interests only in relation to the implementation of the Californian order.
- It was not disputed that MN was habitually resident in California before her removal to England by PLH. The question was therefore whether PLH, as MN's agent, had the authority to remove her. In order to determine the issue, a joint expert in Californian law would need to be appointed.
- If her removal had been wrongful, then MN would remain habitually resident in California. Even if removal were found to be wrongful, there was authority to suggest that if MN were to remain in the United Kingdom, she could become habitually resident in England after a sufficient time, although this period was not defined.
Limited application of best-interests test
The High Court considered the extent to which it was required to take into account MN's best interests in relation to the recognition and enforcement of the Californian order (should she be habitually resident there). The act requires that a patient's best interests be considered when a decision is being made for or on behalf of a person. The judge concluded that when deciding whether to recognise and enforce a measure taken or ordered by a foreign court, the court should consider the adult's best interests only in relation to the implementation of the order (in this case, the journey back to California). It should not carry out a full best-interests enquiry into the person's welfare unless the order was manifestly contrary to public policy or the Californian court invited the Court of Protection to adopt a full best-interests jurisdiction. A further analysis of future care plans would come very close to a full best-interests enquiry and was therefore not required.
As MN was held to be habitually resident in California, the High Court recognised the foreign order and, after a consultation with doctors and all those who cared for her, MN was safely returned to her home.
This is a landmark judgment, as it is the first to consider Schedule 3(4) of the act and its application in relation to an incapacitated adult where a foreign court has ordered protective measures. It answers important questions relating to Schedule 3 and, considering that no guidance or other legislation has been issued to support the act, the judge's decision provides welcome clarity and useful guidance.
However, difficulties remain in terms of how decisions may operate in practice; there are also tensions and contradictions of a technical nature and potential conflicts between the interpretation and wording of the Hague Convention, Schedule 3 and the rest of the act. Furthermore, as approaches to incapacitated adults differ widely between foreign jurisdictions, it seems likely that Re MN will not be the final word on this issue. This may be taken even further into the areas of lasting powers of attorney and statutory wills, where tensions and contradictions between the act and the convention also exist. The legislation in place cannot provide all the answers, so the particular cross-border issues involved will require thought and care in every case.
For further information on this topic please contact Peta McLean at Lawrence Graham by telephone (+44 20 7379 0000), fax (+44 20 7379 6854) or email ([email protected]).