My understanding at this point is that AA is still trying to participate in hearings concerning the placement of her daughter P. This ongoing litigation will take place in the family courts and falls outside both my expertise, and the terms of reference of this blog. There is thorough commentary raising a range of different concerns here, here and here.
There were some really useful points raised on this post and I apologise for not replying to all of them. One which I did not reply to because I did not want to say anything glib was ‘I don’t agree that the innocent have nothing to fear. They may not have anything to fear from the law when it works as it is intended to, – but how was this woman supposed to find someone to defend her interests?’
This is the nub of the problem. As outsiders with no actual knowledge of the situation but considerable knowledge of domestic law all the mental health and family law commentators swiftly realised that the initial reports in the Daily Telegraph and Daily Mail must have been overstated or contain significant omissions. We now know this to be the case as Cardiff Law School summarises.
At the same time we know that even if the law worked as intended (and you’ll gather from my own posts I think that is a moot point) AA did not have opportunities to defend her own views of her situation. Her ‘interests’ were represented by no doubt highly skilled counsel appointed on her behalf by the Official Solicitor. So AA enjoyed a lot of rights to process, but little substantive right to challenge the decisions being made about her.
And there is a cruel irony to this because AA’s rights to a fair hearing and to respect for her private and family life – the two rights which may have been infringed here, were actually protected in turn by a complex package of international legal obligations.
AA’s protection under international law
AA was uniquely vulnerable. She was in the third trimester of pregnancy, in a foreign country away from family and friends, experiencing a mental disorder which may or may not have affected her capacity to reach important decisions about her life and she was subject to detention. Her vulnerability is recognised under domestic law – which is why we have all these procedures before she can be detained under the Mental Health Act, subject to forced treatment under the Mental Capacity Act or have her child removed from her care under the Children Act. Her vulnerability is also recognised under international law because she would have fallen within the scope of the Hague Convention on the International Protection of Adults to which Italy is a contracting party. The Convention does not, in itself, create any rights to respect for AA’s fundamental rights. But Schedule 3 MCA did create an obligation on the UK authorities to ensure that that the Italian authorities were notified of her status and that AA’s interests in her property were secured. I have no idea how these obligations are interpreted within Italian constitutional law. Within domestic law such obligations would have to be interpreted in light of s.6 of the Human Rights Act and would require consideration of the principle of respect for AA’s private and family life under Article 8 of the ECHR, i.e. there may have been a duty on the Italian authorities to consider what steps they could take to keep mother and child together.
AA’s protection under EU law
AA was an EU citizen and a worker when she arrived in the UK and thus exercising rights under the Treaty on the Functioning of the European Union. Her access to emergency healthcare was a right exercised under Regulation (EC) 883/2004 (warning pdf) and presumably Essex Health Trust sought reimbursement for her care from the Italian authorities. If they did then decisions made about her care undoubtedly fell within the scope of EU law. This matters because after the decision in Akerberg-Fransson we know that the scope of the Charter of Fundamental Rights of the European Union (the Charter) extends to the interpretation of domestic legislation which is being used to implement an EU right, so in this case it could be applied to the interpretation of the Mental Health Act and Mental Capacity Act insofar as they are being used to define the scope of AA’s rights of access to treatment under EU law. The key right here is Article 47 of the Charter which protects the right to a fair hearing and incorporates all the procedural rights guaranteed under Article 6 ECHR. You might ask (as Mostyn J. did in another of his recent judgments) how the Charter is of relevance when the UK explicitly derogated from it by negotiating the famous opt-out: Protocol 30 TFEU. The answer is that in a close analysis of the text the Advocate-General in N.S. v Secretary of State for the Home Department found that the Protocol primarily reaffirmed the content of Art 51 of the Charter and clarified the application of the remaining provisions, but was clearly not intended to disapply the Charter to those states which had negotiated it. There is a crucial difference between fundamental rights as recognised under EU law and under the ECHR however. If it is found that a state’s action in implementing EU law has been inconsistent with the Charter then the requirements of EU primacy require the national court to disapply the domestic law, and not merely find the provision incompatible.
This protection is far more problematic, I do not know if Essex Health Trust conceptualised AA as an EU citizen protected by the Charter, but I would argue they certainly should have done. AA’s rights were distinctively affected because she was an EU citizen working in another member state. Had she remained at home in Italy her vulnerability would have been substantially diminished.
These international legal mechanisms for recognising rights apply before you even consider the application of the ECHR to AA’s case, or the rights contained in the UN Convention on the Rights of Persons with Disabilities which the UK has also ratified.
But to transform these realisable rights into real rights AA first had to be an actor with legal capacity and able to define her own interests.
If there is a larger moral to this then it is that the political significance of legal capacity cannot be overstated. Defining rights alone is of little value. The large and as yet unanswerable questions all remain. How do we define who cannot exercise legal capacity or provide appropriate assistance to those who need it? I know of no supported decision-making regime, for example, that has solved the problem of supporting decision-making when someone has current psychosis, and as someone with personal experience of psychosis my imagination struggles to accomodate that.
And how can we begin to ensure that the failsafes our system applies to ensure that when individuals are vulnerable for multiple reasons (pregnant, foreign, seriously ill, detained) we are able to interpret their interests and represent them robustly?