DL v A Local Authority & Ors

The focus of this appeal is a single point of law. The point relates to the extent to which the inherent jurisdiction of the High Court may be deployed following the implementation of the Mental Capacity Act 2005 for the protection of adults who are perceived to be vulnerable. The issue does not concern those cases that fall within the MCA 2005 and which proceed in the Court of Protection. The question for consideration is whether, despite the extensive territory now occupied by the MCA 2005, a jurisdictional hinterland exists outside its borders to deal with cases of ‘vulnerable adults’ who fall outside that Act and which are determined under the inherent jurisdiction.

It is common ground that the High Court exercised the inherent jurisdiction in relation to adults prior to the commencement of the MCA 2005 in 2007. The appellant argues that the MCA 2005 and its supporting Code of Practice represent comprehensive statutory provision for the protection of adults and that Parliament intended that it would be impermissible for the High Court to exercise any jurisdiction in relation to the care and protection of adults who fall outside the provisions of the 2005 Act.

The point is of real importance in the present case where, at the start of the proceedings, the two elderly adults concerned plainly had mental capacity to make decisions for themselves. The MCA 2005 s 2(1) limits the compass of that legislation to a person who lacks capacity in relation to a matter because, at the material time, “he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. In the present case the Local Authority, who seek to invoke the inherent jurisdiction for the protection of these two elderly people, claim that the couple lack capacity as a result of undue influence and duress brought to bear upon them by their son, DL.

This point of law fell to be determined as a preliminary issue in the proceedings and, on 19 April 2011, Mrs Justice Theis gave judgment to the effect that the High Court’s inherent jurisdiction to protect adults had survived the passing of the 2005 Act and that the court therefore had jurisdiction to make orders with respect to DL’s parents in this case notwithstanding that one or both of them continued to retain capacity under the terms of the MCA 2005.

By the time the matter fell to be determined, sadly GRL’s mental wellbeing had deteriorated to the extent that it was agreed that he lacked capacity within the meaning of MCA 2005 and his case therefore proceeds within the statutory scheme in the Court of Protection before Theis J sitting as a judge of that court.

The substantive order made by Theis J included a wide-ranging interim injunction order made under the inherent jurisdiction (with respect to ML) and under the MCA 2005, s 48 (with respect to GRL) restraining DL’s behaviour towards his parents, care staff and other professionals.

On 29 June 2011 Lord Justice Hughes granted DL permission to appeal to this court. The appeal, which we have now heard, was litigated between DL and the Local Authority, with no contribution on behalf of DL’s parents.

At the conclusion of the oral hearing we announced our decision which was that the argument on behalf of DL had failed, the conclusion reached by Mrs Justice Theis was correct, the inherent jurisdiction for the protection of adults survived the passing of the MCA 2005 and the court therefore had jurisdiction to move forward and consider whether the facts in this case justified its deployment for the protection of DL’s parents, ML and/or GRL. As a result, and in order to allow the proceedings to progress, we announced our intention to dismiss the appeal. The purpose of this judgment is therefore to spell out the reasoning behind our decision.

For the purposes of the determination of the legal point the parties have helpfully agreed a set of “assumed facts” which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.

“Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves. Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.

The local authority is concerned about DL's alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL's behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL's name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.

The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.

The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL's behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife's wishes.

Interim injunctions were made by the President, Wall LJ, on 12 October 2010, ex parte and without notice, restraining the First Defendant from:

(i)

assaulting or threatening to assault GRL or ML;

(ii)

preventing GRL or ML from having contact with friends and family members;

(iii)

seeking to persuade or coerce GRL into transferring ownership of the current family home;

(iv)

seeking to persuade or coerce ML into moving into a care home or nursing home;

(v)

engaging in behaviour towards GRL or ML that is otherwise degrading or coercive, including (but not limited to): stipulating which rooms in the house GRL or ML can use; preventing GRL or ML from using household appliances, including the washing-machine; 'punishing' GRL or ML, for example, by making GRL write 'lines'; shouting or otherwise behaving in an aggressive or intimidating manner towards them.

(vi)

giving orders to care staff;

(vii)

interfering in the provision of care and support to ML;

(viii)

refusing access to health and social care professionals;

(ix)

behaving in an aggressive and/or confrontational manner to care staff and care managers.

The President also made a Harbin v Masterman order inviting the Official Solicitor to investigate ML and GRL's true wishes and to ascertain whether they are operating under the influence of DL in relation to the contact that they have with him.

The Official Solicitor appointed an Independent Social Work Expert, Jeff Fowler, to visit and interview GRL and ML which took place on 10 November 2010 and he produced a written report dated 13 November 2010. Mr. Fowler invited DL to be interviewed during the visit which DL acceded to, however the appointment could not be re-arranged to suit DL's availability and the assessment proceeded without DL(para 2.1)). Mr. Fowler concluded (without the benefit of any assessment of DL's account or evidence), so far as is material, that both GRL and ML are unduly influenced by DL to an extent that their capacity (in the SA sense) to make balanced and considered decisions is compromised or prevented (paras 3.19-3.26). However it was recorded that DL's influence is not so strong that ML is unable to give instructions which reflect her own wishes although they are subject to DL's influence (3.29) and that GRL had resisted pressure from DL (3.30). It was further recorded that neither DL nor GRL meet the criteria set down in s.4 of the MCA 2005 and that they both understand advice which is given to them (3.28). In order for both GLR and ML to regain capacity (in the SA sense) DL must stop behaving in an abusive manner towards GRL , in particular. His report concludes (para 3.34):

"In any event DL must change the way he has behaved towards his parents as this has compromised the extent to which they have the capacity to make all decisions in respect of their lifestyle, living arrangements, personal and inter personal relationships."

Thus, while the Claimant accepts (for the purposes of this preliminary issue) that ML and GRL are not suffering from any impairment or disturbance of functioning of the mind or brain and therefore have capacity to decide as to residence and contact with DL for the purposes of the 2005 Act, Mr. Fowler's preliminary evidence suggests that they have or may have been deprived of capacity to decide those issues due to the undue influence of DL. However it is acknowledged that further evidence will be necessary before this issue can be determined conclusively”

Both sides agree that Mrs Justice Theis correctly framed the legal issue at paragraph 7 of her judgment in these terms:

“The central issue in this case is whether, and to what extent, the court's inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor.”

It is accepted that the decision of Munby J (as he then was) in Re: SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam); [2006] 1 FLR 867 is the high point in a series of first instance decisions which describe the extent of the inherent jurisdiction in relation to vulnerable adults, and, in particular, illuminate the margins of that jurisdiction insofar as it relates to adults who do not lack capacity as a result of impairment of, or disturbance in the functioning of, the mind or brain. It is therefore helpful at this stage to look in detail at that decision.

Re SA focussed upon an 18 year old woman, who was profoundly deaf, lacking in any means of oral communication, had a profound bilateral sensory neural loss and who had a significant visual loss in one eye. Her only means of communication was via British Sign Language, which is based on English. Her parents, whose language was Punjabi, could not could not use sign language and their ability to communicate with their daughter was very limited. The issue before the court related to the prospect that SA may in due time be involved in a marriage. It was common ground that she had sufficient understanding of the general concept of marriage and did not lack the capacity to marry. The question raised in the case was whether the court had jurisdiction to continue protection provided previously during her minority to protect her from the risk of an unsuitable arranged marriage.

The judgment given by Munby J is characteristically comprehensive. It merits reading in full and I intend to do no more than quote the key elements of the judgment within this judgment.

At paragraph 37, Munby J stated his headline conclusion before descending into a detailed analysis of the earlier case law:

In passing, Miss Nathalie Lieven QC for the Appellant submits that the use of ‘incompetent adults’ in an apparently interchangeable and equal manner with that of ‘vulnerable adults’ in this paragraph is a piece of judicial ‘sleight of hand’ and illustrates a blurring of the very distinction which was at the heart of the case. Whilst I understand the point being made, I do not consider that there is any substance in it as throughout the remainder of the judgment, when the need arises, Munby J is absolutely plain that he is looking at adults who are ‘vulnerable’ for reasons other than ‘incompetence’ or lack of capacity (for example Munby J’s description of ‘vulnerable adult’ at paragraphs 82 and 83 and reproduced at paragraph 23 below).

In paragraphs 38 to 103, Munby J traced the development of the jurisdiction following its ‘rediscovery’ by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. He described ‘the nature of the jurisdiction’, ‘the circumstances in which the jurisdiction is exercised’, ‘the ambit of the jurisdiction’, ‘the powers of the court’ and ‘the exercise of the court’s powers’.

Amongst the matters developed within his analysis, Munby J drew attention to the description of the use of the common law as a ‘the great safety net’ which was necessary to fill gaps where it is necessary to do so. The phrase originated from Lord Donaldson of Lymington MR in the Re F decision and was endorsed by, among others, Dame Elizabeth Butler-Sloss P in Re A Local Authority (Inquiry: Restraint on Publication) [2004] Fam 96.

The baseline is established in paragraphs 46 and 47 where Munby J recorded the fact that it had always been recognised that the jurisdiction is exercisable in relation to any adult who is for the time being, and whether permanently or merely temporarily, either disabled by mental incapacity from making his own decisions or, although not mentally incapacitated, is unable to communicate his decision. In addition the jurisdiction extended to the taking of interim measures while proper inquiries are made.

From paragraph 48 onwards Munby J identified the key question of whether the jurisdiction extends beyond those established boundaries and, after proffering the answer that it does, he set out the reasons that support that conclusion.

Part of the case mounted by Miss Lieven is to the effect that Re SA stands alone and is neither supported by earlier authority nor a permissible development of earlier authority. In that context it is to be noted that Munby J is at pains to refer to and recite much of the relevant case law, which he marshals into the argument in support of his conclusion. In order to illustrate the point, regard can be had to paragraphs 55 to 64 in Re SA:

These extensive references to the judgments of the Court of Appeal in Re T and of Bennett J in Re G focus directly upon a situation where a person’s ability to make decisions may be overborne by the undue influence of another, rather than lost as a result of mental incapacity. In Re G the very issue related to a vulnerable adult who lacked capacity when under the influence of her father’s powerful character, but who regained capacity when protected from that influence. Having considered those two earlier decisions, set in the context of earlier authority, it is in my view very difficult for Miss Lieven to persuade this court that Munby J’s analysis in Re SA is an isolated decision, which is not supported by earlier case-law.

Following his review of the authorities (which was far more extensive than the purely illustrative text that I have extracted), Munby J drew his conclusions together at paragraphs 76 to 79:

Finally, in this regard, at paragraphs 81 to 83 Munby J offered a definition of ‘vulnerable adult’ for the purposes of the jurisdiction that he was describing. The definition was deliberately couched in wide and loose terms:

Following a necessarily extensive review of the decision of Munby J in Re: SA, Theis J considered a number of subsequent first instance authorities on this point. Each of these cases illustrates the deployment of the inherent jurisdiction in different factual circumstances and it is not necessary in this judgment to do more than list the cases:

Between paragraphs 35 and 40 of her judgment, Theis J summarised the contentions made by each side in relation to the Human Rights Act 1998. In short the Local Authority argued that the ECHR and the HRA 1998 required the court to retain the inherent jurisdiction to comply with its obligations, in particular under Articles 3 and 8. The submission was that the common law has to develop for the positive obligations imposed by the HRA to be given effect. It was submitted that if DL’s argument succeeded there would be a new “Bournewood gap”. For DL, Miss Lieven QC, submitted that all the cases relied upon by the Local Authority involved children or incapacitated adults, she further argued that the positive obligation under Article 8 could not be extended in the way that the Local Authority, through their counsel, Mr Bowen, sought to do.

After describing the genesis of the legislation that eventually became the MCA 2005 and after summarising the submissions made to her, at paragraph 48 onwards of her judgment Theis J discussed the issues and moved to her decision which was set out in the following terms at paragraph 53:

“Having considered the detailed written and oral submissions, I have come to the conclusion that the inherent jurisdiction can still be invoked in cases such as this and that what has been termed the SA jurisdiction does survive the MCA and the Code. I have reached this conclusion for the following reasons:

(1)

It is accepted prior to the implementation of the MCA that the inherent jurisdiction extended to cases that went beyond issues relating to mental capacity. In appropriate cases, having balanced the competing considerations, the jurisdiction was invoked and exercised with the court making declarations and protective orders (SA supra).

(2)

It is accepted that the essence of this jurisdiction is to be flexible and to be able to respond to social needs.

(3)

The Parliamentary consideration, prior to the passing of the MCA, did not expressly seek to exclude the court's inherent jurisdiction that had developed at the time. The consideration it did give to adults found to have capacity (sometimes after investigation) did not expressly exclude the court exercising its inherent jurisdiction in relation to adults as described in SA. The SA inherent jurisdiction is a protective jurisdiction that extends beyond dealing with issues on mental incapacity.

(4)

Each case will, of course, have to be carefully considered on its own facts, but if there is evidence to suggest that an adult who does not suffer from any kind of mental incapacity that comes within the MCA but who is, or reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors they may be entitled to the protection of the inherent jurisdiction (see: SA (supra) para [79]). This may, or may not, include a vulnerable adult. I respectfully agree with Munby J in SA at para [83]:

"The inherent jurisdiction is not confined to those who are vulnerable adults, however that expression is understood, nor is a vulnerable adult amenable as such to the jurisdiction. The significance in this context of the concept of a vulnerable adult is pragmatic and evidential: it is simply that an adult who is vulnerable is more likely to fall into the category of the incapacitated in relation to whom the inherent jurisdiction is exercisable than an adult who is not vulnerable. So it is likely to be easier to persuade the court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable."

In the cases I have been referred to, the term 'vulnerable adult' appears to have been used to include the SA definition, whether the adult in question is vulnerable or not. Obviously the facts in SA were very different to the case I am concerned with. For example, in this case ML and DL have capacity to litigate but that does not, in my judgment, mean that the inherent jurisdiction should not be available to protect ML, once the court has undertaken the correct balancing exercise.

(5)

The continued existence of the SA jurisdiction, following implementation of the MCA, has been re-stated in a number of decisions. Whilst some of the observations may be regarded as obiter (in particular A Local Authority v A (supra) at para [68]) they have consistently re-affirmed the existence of the jurisdiction. In particular the observations made by Bodey J in A Local Authority v Mrs A (supra) at para [79], Macur J in LBL v RYJ (supra) para [62] and Wood J in LB of Ealing v KS (supra) para [148]. I reject the submission by Miss Lieven Q.C. that the observations made by Macur J are in fact a rejection by her of the continued existence of the SA jurisdiction. What she was considering in para [62] was the fallback submission of the local authority in that case that if the case failed to come within the MCA the court retained a general jurisdiction to make decisions in relation to an adults 'best interests' who were not incapacitated by external forces (in the SA sense). I agree with Macur J when she states at para [62]:

"..the relevant case law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decision."

As Wood J said in LB of Ealing v KS (supra) Munby J in SA was talking of persons who are deemed not to have capacity in the true sense, and not of persons where a paternalistic authority considers the acts unwise. Although the Official Solicitor was not invited to make any submissions in this case, it is of note that in the letter of instruction from the Official Solicitor to Independent Social Worker, Mr Jeff Fowler, dated 5^th November 2010 there was extensive reference to Munby J's judgment in SA.

(6)

I agree with the submissions of Mr Bowen, that the obligations on the State under the Convention and the HRA require the court to retain the inherent jurisdiction, as by refusing to exercise it in principle the court is, in effect, creating a new "Bournewood gap". Whilst it is correct that the cases to date regarding any positive obligation on the State (including the LA) arising under Article 8 have concerned cases involving children or adults who lack mental capacity that does not mean, in principle, such positive duties cannot arise in other circumstances. There may be a heightened positive duty in cases concerning children and adults who have mental incapacity. Much will depend on the circumstances of each case and what the proportionate response is considered to be by the LA.

(7)

I agree with the submissions of Miss Lieven Q.C. (as supported by the observations of Bodey J in A Local Authority v Mrs A (supra) para 79 and Macur J in LBL v RYJ (supra) para 62) that in the event that I found that the jurisdiction does exist that its primary purpose is to create a situation where the person concerned can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do. That is precisely what Munby J ordered in SA. There obviously needs to be flexibility as to how that is achieved, dependent on the facts of each case. That does not mean it can be covered by s 48 MCA, as Miss Lieven Q.C. sought to suggest at one stage in her oral submissions as, in my judgment, s 48 by its express terms is only intended to cover the interim position pending determination of an application. As Munby J observed in SA (para [137]) in some circumstances it will be necessary to make orders without limit of time.

(8)

The mere existence of the jurisdiction does not mean it will always be exercised. Each case will have to be considered on its own facts and a careful balance undertaken by the court of the competing (often powerful) considerations as to whether declarations or other orders should be made. As Miss Lieven Q.C. points out the assumed facts in this case are not accepted by DL and even if they are one of the important considerations for the court to consider are the views of adults concerned; they do not support the orders being sought by the LA. In addition, the terms of the orders being sought in this case are likely to require very careful scrutiny.”

In consequence Theis J, having determined that the inherent jurisdiction was available to be exercised in this case, gave directions for the future conduct of the litigation. Unfortunately, but perhaps inevitably, because of the progress of this preliminary issue by way of appeal, we were told that the main proceedings have been effectively suspended pending the determination of this court. It is our earnest hope now that matters can proceed to the determination of the substantive issue.

As was the case below, the arguments for both sides have been deployed with conspicuous clarity and skill by Miss Nathalie Lieven QC (leading Mr Alex Durance) and Mr Paul Bowen (leading in this court Miss Alison Pickup). We are extremely grateful to all counsel, and indeed to Mrs Justice Theis, for the way in which the issues raised by this important point of law have been teased out, described and presented for consideration. That has greatly eased the task of the analysis and determination of this point.

The principal arguments deployed by Miss Lieven in this court can be summarised as follows:

In developing her submissions Miss Lieven understandably stressed the premium which the courts have habitually attached to the right of autonomy enjoyed by every individual in a democratic society. She relied upon the words of Lord Reid in S v McC: W v W [1972] AC 25:

“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”

The point was further illustrated by reference to a line of medical cases including Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] AC 871 and B v An NHS Trust [2002] EWHC 429 (Fam). Miss Lieven stressed that those cases, and indeed all the reported cases prior to Re: SA, were medical cases, save for a decision of Mr Justice Singer a few months earlier in Re: SK (Proposed Plaintiff) (An adult by way of her litigation friend) [2004] EWHC 3202 (Fam); [2006] 1 WLR 81. Miss Lieven also seeks to isolate the Re SA decision by pointing out that the individuals in the earlier cases of Re T and Re G were people with ‘borderline capacity’.

Pausing there, it is right to note that those latter submissions were in the context of counsel seeking to knock down a case that she had built up to the effect that the local authority argument meant that absolutely every person could be prone to a court overriding their decision making if it were thought to be unwise, notwithstanding that they retained full capacity. Until that submission was made, I had read neither the judgment of Munby J nor the argument of the local authority to be couched in such extravagant terms. The case law, including Re SA, is all about deploying the ‘safety net’ of the inherent jurisdiction to protect vulnerable individuals. To my mind the fact that the previous cases, and in fact SA itself, involved vulnerable individuals who may have been on the borderline of lacking capacity, pointed up the potential value of the jurisdiction and, if anything, went to undermine the appellant’s central case.

By way of illustration of the manner in which the jurisdiction is applied in practice, which I would suggest is in clear contradiction to the manner characterised within the appellant’s submissions, I draw attention to a decision of Mrs Justice Macur in LBL v RYJ and VJ [2010] EWHC 2665 (COP) where at paragraph 62 the judge held:

Having traced the development of the MCA 2005 from the work of the Law Commission in l995, through the consideration of a draft Bill by a joint committee of both Houses of Parliament and on to the culmination of that process by the enactment of the MCA 2005, Miss Lieven submits that the “autonomy principle” is maintained by that legislation. Whilst reference was made (as I shall describe below) during that process to those whose capacity to make decisions may be suborned as a result of pressure or duress, the balance struck in the MCA 2005, and followed through in the Code of Practice, is that if such a person is found to have mental capacity then he or she has the right to make their own choices. Focussing on this case it is submitted that “the fact that ML is elderly, and that she has chosen to live in a situation which, on the Local Authority’s case may put her at risk of harm or exploitation, does not give the court any right to intervene”.

Miss Lieven’s approach to Re SA is twofold. Firstly she submits that at the time the decision was made it represented an impermissible and erroneous extension of the inherent jurisdiction which amounted to a major infringement of the principle of autonomy which had stood as an important principle within the common law for well over a century. Had the MCA 2005 not now been in force, Miss Lieven would be submitting that Re SA was wrongly decided and should be overturned. However, and this is her second submission, there is no need to take that step because the jurisdiction described by Re SA has not survived the coming into force of the 2005 Act.

The basis for the second submission is that where Parliament has created a statutory scheme which is intended to be exhaustive, the common law should not go behind that scheme (Black v Forsey [1988] SC (HL) 28). Reliance is placed upon Bennion on Statutory Interpretation (5^th edition at p 1250) where it is said: “where an enactment codifies a rule of common law…it is presumed to displace that rule altogether”. Miss Lieven submits that the MCA 2005 and the Code of Guidance provide an exhaustive test for capacity and set absolute and clear limits on the circumstances in which it is appropriate for courts to intervene in the affairs of adults. Insofar as courts have continued to rely on Re SA, as Theis J has in this case, Miss Lieven submits that the balance struck by Parliament in the MCA 2005 has been subverted in an unjustifiable manner.

To make good her submission Miss Lieven took the court to the background material describing the development of the principles which eventually were enacted in the MCA 2005, and, in particular, stressed the following:

It was apparently this category of individuals that the committee drew back from recommending should be included within the terms of the Bill.

Miss Lieven therefore submits that the resulting Act expressly left out of its terms, as it clearly does [see MCA 2005 s 2(1)], those individuals who do not lack mental capacity. Her case is that the inevitable conclusion must be that Parliament intended individuals outside the compass of the legislation to be free from court intervention in their ability to make decisions about their own lives. Miss Lieven did not accept the point put to her during argument by my Lord, Lord Justice Davis, to the effect that the 2005 Act is simply a statutory scheme for adults who lack mental capacity and is not intended to deal, one way or the other, with any other individuals.

Miss Lieven bolsters her submission by reference to the Mental Capacity Act Code of Practice where, at paragraph 2.8, it is stated that ‘anyone supporting a person who may lack capacity should not use excessive persuasion or “undue pressure”. This might include behaving in a manner which is overbearing or dominating, or seeking to influence the person’s decision, and could push a person into making a decision they might not otherwise have made’. Later, at paragraph 2.11 further advice is given as to the possible impact of undue pressure upon someone who might lack capacity as a result of a mental condition or disorder.

Supported by these references to the guidance, the submission is made that the very issue in the present case, namely alleged undue influence, is covered by the guidance and it is plain that there is only jurisdiction for the Court of Protection to take steps to override the decision of a person who has been the subject of such influence if he is found to lack mental capacity. That, submits Miss Lieven, is where Parliament has drawn the line. ML in the present case retains capacity and, despite the local authority concern about undue influence, her retention of capacity places her outside the MCA 2005 and Code and therefore, because the statutory scheme is all encompassing, beyond the reach of the court.

Finally, Miss Lieven’s fall back submission, if, contrary to her primary case, some element of the inherent jurisdiction survives the advent of the MCA 2005, is that the extent of that jurisdiction is extremely limited and amounts to no more than the court having the power to make orders to protect an individual for a short period of time in order to provide ‘space’ within which the individual may make a fully informed decision separated, if necessary, from the perceived source of undue influence.

Orally, Miss Lieven reinforced her submission that Re SA stood alone as an authority and that the previous cases were limited in subject matter to medical issues and involved those who lacked capacity, or who had borderline capacity which may have been further compromised by undue influence. She submitted that the important Court of Appeal authority of Re T would now be a case within the MCA 2005.

Her central submission was that the MCA 2005 was not limited to those who lack mental capacity but was intended by both the Law Commission and Parliament ‘to create a statutory scheme setting out a comprehensive code as to whether people had capacity, and the circumstances in which the courts could interfere in the decision making of an adult’.

Miss Lieven agreed that issues arising out of ECHR Article 8 probably do not assist either side of this argument and the case effectively turns upon the existence, or otherwise, of the inherent jurisdiction to cover individuals such as ML.

A difficulty for the appellant’s argument is that this court in Westminster City Council v C [2008] EWCA Civ 198; [2009] 2 WLR 185 (Thorpe, Wall and Hallett LJJ) roundly dismissed grounds of appeal that argued that the inherent jurisdiction relating to adults had not survived the arrival of the MCA 2005. The Westminster case concerned a 25 year old man who suffered from autism and severe impairment of intellectual functioning. His local authority sought a declaration under the inherent jurisdiction as to his capacity to marry. It transpired that, by the time of the first instance hearing, the man had in fact been through a ceremony of marriage in Bangladesh and much of the judicial focus was upon the validity of that marriage. Nevertheless the man’s parents argued that in any event the court had no jurisdiction to make orders for their son’s future protection and management.

Thorpe LJ, at paragraph 12, dealt with the jurisdictional point shortly and refused permission to appeal on that ground:

Wall LJ also refused permission to appeal on the following basis:

Miss Lieven seeks to distinguish the Westminster case from the present case on the basis that in the former the court was being asked to make a type of order (namely preventing an adult from leaving the jurisdiction of England and Wales) which is simply not covered within the 2005 Act, whereas the type of orders sought in respect of ML are very much the subject matter of the MCA 2005 (and indeed have been made in identical terms with respect to ML’s husband under that Act).

The appeal is opposed by Mr Paul Bowen on behalf of the local authority. He submits that the appeal is based on the false premise that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and thereby ignore their fundamental right to autonomy. Mr Bowen submits that the case is far more narrowly based than that and is limited to those individuals who fall outside the MCA 2005 but who nevertheless have not given, or cannot give, a ‘true consent’ to a particular aspect of their lives not as a result of mental incapacity but for some other reason, such as the undue influence of a third party. Mr Bowen’s submissions have therefore been to delineate the extent of the jurisdiction so that it only covers those cases where it is necessary for the court to act because a person’s capacity to make decisions for themselves has been overborne by circumstances other than those covered by the MCA 2005.

Mr Bowen has the substantial benefit of being able to rely upon the analysis and conclusions of Munby J in Re SA and, understandably, much of his argument was designed to highlight and support those matters. In addition he drew attention to the fact that Parliament was expressly aware of the concept of ‘elder abuse’ during the pre-legislative scrutiny process. The MCA 2005 makes no express provision limiting or extinguishing the use of the inherent jurisdiction. Mr Bowen therefore submits that Parliament can be taken as intending that in so far as the inherent jurisdiction may cover matters outside the 2005 Act, then the legislation leaves that jurisdiction untouched to develop under the common law as it had done prior to 2005.

Despite the diligence, elegance and skill displayed by Miss Lieven in deploying her arguments in support of the appeal, I am afraid that I have found at each turn that the case in favour of supporting the decision of Theis J (and behind that the decision of Munby J in Re SA) has become stronger. Having laid out the arguments on each side and made reference to the case law, it is not necessary for me to state my conclusions in more than short terms.

I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of ‘vulnerable adults’ for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there.

The appellant’s submissions rightly place a premium upon an individual’s autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA):

I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case.

In the same manner, the argument that in the Westminster case the court was concerned with a type of relief (preventing removal from the jurisdiction) which is not catered for in the MCA 2005 and therefore the existence of the inherent jurisdiction to supplement the statutory scheme is acceptable, in contrast to the present case, simply does not stand scrutiny. Either the inherent jurisdiction is there to act as a safety net for matters outside the Act or it is not. The fact that Thorpe LJ and Wall LJ were so firmly of the view that the jurisdiction had survived the implementation of the 2005 Act is a powerful indicator that the Appellant’s argument is wrong.

Miss Lieven’s submission that the MCA 2005 was intended to be a comprehensive statutory code covering all matters relating to an adult’s capacity to make decisions is also unsustainable because the Act itself is expressly limited to, as its title makes plain, ‘mental capacity’. The Act does establish a wide ranging and, for those matters within its compass, a comprehensive statutory code and scheme. But the Act is expressly limited to ‘people who lack capacity’ ‘for the purposes of this Act’ as s 2(1) makes plain:

Nothing in the MCA 2005 makes express provision with respect to individuals who may lack capacity for a reason other than an impairment of, or disturbance in the functioning of, the mind or brain. Neither is there any express reference to the inherent jurisdiction of the High Court. This latter state of affairs is in contrast to both the Children Act 1989 and the Family Law Act 1996 Part 4A (implementing the Forced Marriage (Civil Protection) Act 2007).

In so far as it is relevant, CA 1989, s 100 provides:

FLA 1996, s 63R provides:

It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.

An example of the utilisation of the inherent jurisdiction for this very purpose is provided by the case of Westminster City Council v C (see paragraph 46 above). For my part, I consider that the description given in that case at first instance by Roderic Wood J of the jurisdictional relationship between the statutory scheme and the High Court’s power was entirely apt. I would not attempt to improve upon it and therefore simply repeat it here:

My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of ‘elder abuse’, as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term ‘elder’ in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.

For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.

In this context, again, Miss Lieven’s submissions point up the converse of the outcome for which she argues. The individuals, for example, in the cases of Re T, Re G and Re SA can be categorised, to use Miss Lieven’s term, as ‘borderline lack of capacity’ cases. That state of affairs flags up the very vulnerability described by Munby J. Where, on a strict mental health appraisal, such an individual does not lack capacity in the terms of the MCA 2005 and therefore falls outside the statutory scheme, but other factors, for example coercion and undue influence, may combine with his borderline capacity to remove his autonomy to make an important decision, why, one may ask, should that individual not be able to access the protection now afforded to adults whose mental capacity puts them on the other side of that borderline?

In terms of the ECHR, the use of the inherent jurisdiction in this context is compatible with Article 8 in just the same manner as the MCA 2005 is compatible. Any interference with the right to respect for an individual’s private or family life is justified to protect his health and or to protect his right to enjoy his Article 8 rights as he may choose without the undue influence (or other adverse intervention) of a third party. Any orders made by the court in a particular case must be only those which are necessary and proportionate to the facts of that case, again in like manner to the approach under the MCA 2005. In this respect it is not irrelevant that the judges of the High Court, Family Division to whom the exercise of this aspect of the inherent jurisdiction is assigned, are all also judges of the Court of Protection and well used to the approach under the statutory scheme.

Further, in terms of the manner in which the jurisdiction should be exercised, I would expressly commend the approach described by Macur J in LBL v RYJ and VJ [2010] EWHC 2665 (COP), paragraph 62, which I have set out at paragraph 33 above. The facilitative, rather than dictatorial, approach of the court that is described there would seem to me to be entirely on all fours with the re-establishment of the individual’s autonomy of decision making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.

It follows that, despite the clarity and skill with which it has been argued, I have no hesitation in dismissing the appellant’s primary grounds of appeal and upholding the decision of Theis J in this case. Although argued as a separate, fall back, ground, it must follow from my unreserved endorsement of the full jurisdiction described by Munby J in Re: SA and applied subsequently in a number of cases at first instance that I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.

For the reasons that I have given I would therefore dismiss this appeal.

Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute: see the observations of Roderic Wood J endorsed by the Court of Appeal in Westminster City Council v C (op. cit.).

That authority is in itself against the argument of Miss Lieven, which necessarily has to presuppose that the inherent jurisdiction has been entirely ousted in the case of incapacitated adults.

But there is, in my view, an even more fundamental objection. Miss Lieven’s argument of course has to go further and say that the introduction of the MCA 2005 has ousted the inherent jurisdiction altogether with regard to adults, whether incapacitated or not. But there simply is no such provision to that effect contained in the MCA 2005 – which, as I read it, is concerned only with adults who lack capacity (as defined in the statute).

Miss Lieven’s argument in fact goes against the ordinary rule of statutory interpretation, most clearly enunciated by Lord Wilberforce in Shiloh Spinners Ltd v Harding [1973] AC 691 at p.725 in these terms:

“In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law. To suppose otherwise involves the conclusion that an existing jurisdiction has been cut down by implication, by an enactment moreover which is positive in character…rather than negative.”

In the present case there was, prior to the passing of the MCA 2005 undoubtedly an inherent jurisdiction established at common law enabling the High Court to intervene, where appropriate, in cases of the present kind (the 1993 case of re T is one illustration). The MCA 2005 does not purport to displace that jurisdiction. In my view, therefore, the required approach to statutory interpretation provides a principled basis for arriving at a thoroughly desirable conclusion.

Miss Lieven also carefully took us through background materials leading up to the enactment of the MCA 2005. Assuming them to be admissible for this purpose of statutory interpretation, they in fact confirm that Parliament was alive to potential issues relating to adults who might be described as vulnerable but who are not mentally incapacitated. It is clear that Parliament decided not to intervene in such cases: being content, it is to be inferred, to leave such cases to be determined as appropriate under the established inherent jurisdiction.

Miss Lieven stressed the importance of personal autonomy. She expressed concern to the effect that the retention of the inherent jurisdiction might for the future be resorted to by public authorities, pursuing a “Big Brother” agenda, with a view to ensuring that adults make decisions which conform to an acceptable, state decided, norm (I put it in my words, not hers). I acknowledge the point but do not share the concern. It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that. It is at all events neither possible nor appropriate exhaustively to define “vulnerability” for this purpose. Cases which are close to the line can safely be left to be dealt with under the inherent jurisdiction by the judges of the Family Division on the particular facts and circumstances arising in each instance.

At the conclusion of the arguments before us, I was in no doubt that the decision of Mrs Justice Theis was correct and that the appeal should be dismissed. The above represents my essential thinking for reaching that view. I have now read the comprehensive judgment of McFarlane LJ, with which I wholly agree. The substantive issues arising, on facts yet to be determined, are accordingly to be dealt with by Mrs Justice Theis, so far as concerns ML, under the inherent jurisdiction of the High Court.

I entirely agree with both judgments.

Where a person lacks capacity in the sense of s2(1) of the MCA 2005, he has the protection provided by that statute. A person at the other end of the scale, who has that capacity and is not otherwise vulnerable, is able to protect himself against unscrupulous manipulation, if necessary by obtaining an injunction against his oppressor. This case is concerned with a category of people who, in reality, have neither of those remedies available for their protection. It would be most unfortunate if, by reference to their personal autonomy, they were to be beyond the reach of judicial protection. For the reasons given by my Lords, they are not. The inherent jurisdiction continues to exist. I have nothing to add as to its scope.

It follows that this appeal is dismissed.