(LEEDS DISTRICT REGISTRY)
AND IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MRS JUSTICE THEIS DBE
Between:
A LOCAL AUTHORITY | Applicant |
- and - | |
DL (1) ML (2) GRL (3) JP (4) | Defendants |
Mr Paul Bowen (instructed by Local Authority Legal Services) for the Applicant
Ms Nathalie Lieven QC & Mr Alex Durance (instructed by Harrison Bundey, Solicitors) for the DL
Hearing dates: 21st & 22nd March 2011
Judgment
MRS JUSTICE THEIS DBE
This judgment is being handed down in private on 19th April 2011. It consists of 31 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mrs Justice Theis DBE:
Introduction
This case raises important questions about the extent of the court’s inherent jurisdiction in relation to vulnerable adults following the implementation of the Mental Capacity Act 2005 (MCA).
The Claimant Local Authority (LA) in this case has applied for an injunction regulating the way adult members of a family in their area live in their home. The family consist of GRL and ML, husband and wife who are aged 85 and 90 years and their son, DL who is in his fifties. They have shared the same home for about 50 years. Just prior to the commencement of the hearing before me GRL was admitted to hospital and then a care home. A very recent report states that he no longer has capacity to make decisions about his future care and, as a result, it was agreed any proceedings that relate to him will be transferred to the Court of Protection. ML and DL remain in the family home. Both ML and DL have capacity in the sense that it is agreed their position does not fall to be considered within the provisions of the MCA.
In a document annexed to the order of Mr Justice Moylan dated 8th February 2011 the matter was set down for hearing before me to determine the following preliminary issue:
Whether there is jurisdiction for the injunctions sought by the Claimant to be made under the court’s inherent jurisdiction in relation to vulnerable adults or under s 222 Local Government Act 1972 (LGA 1972) upon the following assumed facts.
The LA issued their Part 8 claim on the 12th October 2010 and sought without notice injunctions, which were granted by Sir Nicholas Wall, President of the Family Division. Following two directions hearings the matter was listed before me on 21st and 22nd March 2011 when I heard legal argument on the preliminary issue. I reserved judgment.
The LA are represented by Mr Bowen and DL by Miss Lieven Q.C. and Mr Durance. Neither GRL, ML or JP (GRL and ML’s daughter who does not live in the family home) have taken any formal part in these proceedings.
The Assumed Facts
The document annexed to Mr Justice Moylan’s order sets out the assumed facts, agreed between counsel for the LA and DL. This has been subsequently revised. I set them out below in full. Before doing so I should make it clear that the assumed facts are not agreed by DL as being true and are in the main denied. Also the injunctions sought by the LA are not supported by GRL, ML or DL.
Assumed facts
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.
The Law
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.
This category of people was referred during legal argument in this case as not having capacity in the SA sense following the decision of Munby J (as he then was) in A Local Authority v MA, NA and SA (by her children’s guardian LJ) [2005] EWHC 2942 (Fam). I shall in this judgment, for convenience, refer to such persons as vulnerable adults although in SA Munby J made it clear that the jurisdiction is not confined to vulnerable adults, although they are more likely to fall into the category of cases where the court could step in.
In summary, Mr Bowen, on behalf of the LA, submits the inherent jurisdiction does still exist in cases such as this on the assumed facts set out above. SA has been followed in subsequent cases in the Family Division and the obligations and duties under the Human Rights Act 1998 (HRA) require the jurisdiction to still be available in suitable cases. Although the LA, in their skeleton argument, advanced arguments as to jurisdiction based on s 222 Local Government Act 1972 those were not pursued at the hearing before me. The LA nailed their colours to the inherent jurisdiction mast, both in the SA sense and under the HRA.
Miss Leiven Q.C. and Mr Durance, on behalf of DL, submitted that the inherent jurisdiction for vulnerable adults, who did not fall within the MCA, no longer existed. They argue that this was fully considered by Parliament during consideration of the Mental Capacity Bill. The MCA provides for any investigation into capacity under the MCA to be undertaken pursuant to directions or orders made under s 48. Their fall-back position was that if the inherent jurisdiction did exist, it was very limited and could only put in place measures to enable the person to make decisions.
I shall return to their detailed submissions later.
Much of the focus of the legal argument before me has been on the case of SA. This case was decided in December 2005; just under two years before the MCA came into force but after the MCA had received Royal Assent.
SA concerned a young woman who was about to be 18 years. She came from a Pakistani Muslim family and lived with her parents and two younger brothers. She was profoundly deaf, had no oral communication, had profound bilateral sensory neural loss and significant visual loss, and could communicate only in British Sign Language which is based on English. She cannot lip read the family’s first language Punjabi and nether of her parents are able to use British Sign Language. Her intellectual level was assessed at that of a 13-14 year old and she has a reading age of about 7 – 8. Whilst SA was still a minor she was made a ward of court and various injunctions were made preventing SA being removed from the jurisdiction or married. The local authority remained concerned, after SA reached her majority that she may enter into an unsuitable arranged marriage. The evidence established that she had the capacity to marry. However, the concern was that her limited ability to communicate and understand could result in her entering into an unsuitable marriage, which would pose significant risk to her future well-being and mental health. The question arose whether the court could exercise its inherent jurisdiction to protect her from those risks, even though she was an adult with capacity to marry.
In relation to SA Munby J concluded at paras [120], [122] –[125]
“120. In my judgment SA is plainly a vulnerable adult. She is substantially handicapped by her disabilities. And, particularly because she is deaf and dumb, she may well be unable to take care of herself and protect herself against significant harm or exploitation if placed in unfamiliar surroundings or deprived of access to those able to communicate with and for her in British Sign Language.
122. SA will be able to give consent to a particular marriage only if she is provided with a full understanding of what is proposed. Specifically, I am satisfied that if her continued well being is to be assured:
i) any arrangements for SA to be married must be made through the medium of British Sign Language; and
ii) protective measures need to be put in place to ensure that SA is able to understand, and give her consent to, the terms of the specific marriage she is entering into, to ensure, in short, that she is giving a valid consent to any marriage which is being arranged.
123. If such arrangements are not put in place then there is every reason to fear that steps taken in furtherance of those ends would be a series of acts to which she did not consent.
124. In short, SA is a vulnerable adult who there is every reason to believe may, by reason of her disabilities, and even in the absence of any undue influence or misinformation, be disabled from making a free choice and incapacitated or disabled from forming or expressing a real and genuine consent.
125. It follows that I have jurisdiction.”
Munby J held that that the court could exercise its inherent jurisdiction over SA. She would be able to give consent to a particular marriage only if she was provided with a full understanding of what was proposed. In particular, any arrangements for her to be married must be made through British Sign Language and protective measures needed to be put in place to ensure that she is able to understand and give consent to the terms of the specific marriage that she is entering into. She also needed to be protected against a marriage that would cause her to be isolated and helpless in Pakistan in circumstances where she would not be able to communicate with her husband or others around her. The order (set out in full at para [136]) made detailed injunctions against SA’s parents until further order. At para [137] there is reference to SA’s mother asking how long the order should remain in force, Munby J expressed the view that “it is not possible to define this with any precision, though in reality it will need to remain in force indefinitely, probably, in effect, until SA marries. SA should have liberty to apply.”
It is of note that the order was drafted in the way it was in that case for the reasons set out in para [27]
“As Mr Gupta points out, SA is unlikely to marry without her parents' involvement and consent. An order in this form will, he says, effectively ensure that SA is properly informed, and in a manner she can understand, about any specific marriage prior to entering into it. The order is designed to provide a practical solution to the concerns raised by the local authority and other professionals and, very importantly, to reflect what SA herself wants and expects from her husband.”
In his judgment Munby J traced the nature of the jurisdiction he invoked. At para [37] he said:
“It is now clear, in my judgment, that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court.”
At paras [38] – [43] Munby J traced through the development of the jurisdiction from Re F (Mental patient: Sterilisation) [1990] 2 AC 1 through to Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam) where Singer J granted relief in what he acknowledged was a ‘novel’ case. Munby J agreed with what Singer J said at para [8]:
"the inherent jurisdiction of the High Court can, in an appropriate case, be relied upon and utilised to provide a remedy … the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values."
Munby J then considered the circumstances in which the jurisdiction is exercised. At paras [44] and [45] he said
“44. As is well known the jurisdiction was first exercised in relation to issues of surgical, medical and nursing treatment, but it is now clear that it is exercisable not merely in relation to matters of that nature but also in relation to a wide range of other questions:
i) It was soon recognised that the jurisdiction is exercisable in relation to the question of where an incompetent adult should live, who he should see, and the circumstances of such contact: see Re C (Mental Patient: Contact) [1993] 1 FLR 940, In re S (Hospital Patient: Court's Jurisdiction) [1995] Fam 26, [1996] Fam 1, Re D-R (Adult: Contact) [1999] 1 FLR 1161, In re F (Adult: Court's Jurisdiction) [2001] Fam 38, A v A Health Authority, In Re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, Re S (Adult's Lack of Capacity: Carer and Residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235, and Re G (an adult) (mental capacity: court's jurisdiction) [2004] EWHC 2222 (Fam), [2004] All ER (D) 33 (Oct).
ii) It has also been exercised to restrain the publication of matter damaging to a vulnerable adult: see In re A Local Authority (Inquiry: Restraint on Publication) [2003] EWHC 2746 (Fam), [2004] Fam 96, and E (By her Litigation Friend the Official Solicitor) v Channel Four, News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913.
iii) More recently it has been exercised in cases involving marriage, including forced marriages: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, and M v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117.
45. This is far from being an exhaustive description of the potential reach of the jurisdiction. New problems will generate new demands and produce new remedies. As Singer J put it, the jurisdiction must evolve in accordance with social needs and social values. I agree. Indeed, there is probably no theoretical limit to the jurisdiction. As has been said, the court can regulate everything that conduces to the incompetent adult's welfare and happiness, including companionship and his domestic and social environment: see A v A Health Authority, In Re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [39]-[40].”
Munby J then turned to the ambit of the jurisdiction at paras [46] to [95]. He introduced this section of his judgment as follows:
“46. It has 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 decision about the matter in hand or, although not mentally incapacitated, unable to communicate his decision: see in particular Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at pages 75-76.
47. It has also been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention: see In re S (Hospital Patient: Court's Jurisdiction) [1995] Fam 26 per Hale J (as she then was) esp at pages 33, 36.
48. The question is whether the jurisdiction extends further. In my judgment it does. I must now explain why.”
I do not propose to set out all the cases referred to, but merely highlight a few. Munby J referred to what had been said by the CA in Re T (Adult: Refusal of Treatment) [1993] Fam 95
“55. ..…the Court of Appeal had made it clear in In re T (Adult: Refusal of Treatment) [1993] Fam 95, that the court has jurisdiction to determine whether an apparent consent or refusal of consent is vitiated, for example, by the effects of shock, fatigue, pain or drugs, or because the will has been overborne by the undue influence of another, or by deception or misinformation of a significant kind. As Butler-Sloss LJ said at page 117:
"Although the issues of capacity and genuine consent or rejection are separate, in reality they may well overlap, so that a patient in a weakened condition may be unduly influenced in circumstances in which if he had been fit, he would have resisted the influence sought to be exercised over him."
Staughton LJ made a similar point at page 122 when he said:
"at the time of apparent consent or refusal the patient may not, for the time being, be a competent adult. Her understanding and reasoning powers may be seriously reduced by drugs or other circumstances, although she is not actually unconscious."
56. Lord Donaldson of Lymington MR made some general comments at page 113 which are important in the present context:
"When considering the effect of outside influences, two aspects can be of crucial importance. First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful. Second, the relationship of the "persuader" to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships. Persuasion based upon religious belief can also be much more compelling and the fact that arguments based upon religious beliefs are being deployed by someone in a very close relationship with the patient will give them added force and should alert the doctors to the possibility – no more – that the patient's capacity or will to decide has been overborne. In other words the patient may not mean what he says."
57. Butler-Sloss LJ made much the same point at page 120:
"it has long been recognised that an influence may be subtle, insidious, pervasive and where religious beliefs are involved especially powerful. It may also be powerful between close relatives where one may be in a dominant position vis-à-vis the other. In this case Miss T had been during her childhood subjected to the religious beliefs of her mother and in her weakened medical condition, in pain, and under the influence of the drugs administered to assist her, the pressure from her mother was likely to have a considerably enhanced effect. I find it difficult to reconcile the facts found by the judge with his conclusion that the influence of the mother did not sap her will or destroy her volition. The degree of pressure to turn persuasion or appeals to affection into undue influence may as Sir James Hannen P said in Wingrove v Wingrove (1885) 11 PD 81, 82-83, be very little."
After referring to Re G (an adult)(mental capacity: court’s jurisdiction) [2004] EWHC 222 (Fam) Munby J continued at para [66]
“66. Bennett J's language and approach echoes (as I would echo) Thorpe LJ's words in In re F (Adult: Court's Jurisdiction) [2001] Fam 38. That was a case in which the wardship jurisdiction had been invoked very shortly before a vulnerable young woman's eighteenth birthday. On her attaining her majority the question arose as to whether the inherent jurisdiction in relation to adults could be invoked, the wardship jurisdiction, as here, having come to an end. In the course of explaining why it could, Thorpe LJ commented at page 53:
"It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T's best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18."
67. Picking up the chronological thread, I refer next to what Hedley J said in In re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 WLR 959, at para [13]:
"There is a legal presumption in favour of capacity but that could have been rebutted by evidence of inability to assimilate the issues, or fully appreciate the consequences, or being unduly influenced by the views of others or by undue concern for the burden that her condition imposed on others."
68. Finally, I go to Singer J's important decision in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230. In that case Singer J had to consider a novel issue where "gravely disquieting" information about a young adult suggested that she was being kept under constraint as part of an attempt to marry her forcibly. There was no suggestion of mental incapacity.
69. The question was what, if any, powers this court had, analogous to the powers which, if the case had involved a child, would undoubtedly have been exercisable in wardship. Singer J held that the inherent jurisdiction of the High Court provided a remedy. He said at para [8]:
"This young woman, therefore, if a child, would be protected by the court, which would make orders of the sort I am making but adapted to the fact that a child can be made a ward of court. An adult cannot be made a ward of court, but the inherent jurisdiction of the High Court can, in an appropriate case, be relied upon and utilised to provide a remedy. I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values. If an adult is deprived of the capacity to make relevant decisions, then, if there is disagreement about what should be done in his or her best interests, or if there is a serious issue as to the propriety of what is proposed, recourse can be had to the court for declaratory relief. Clear resemblances are to be discerned, in my judgment, with cases such as that of the Norwegian deprived of the capacity for autonomy by the after-effects of a stroke (see Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1, [1995] 1 FLR 1075)."
I entirely agree. The sentiment underlying those observations corresponds exactly with what I and other judges have said on previous occasions.”
Having conducted his review of the authorities Munby J then pulled the threads together, setting out what he considered to be the ambit of the jurisdiction at paras [76] – [80]:
“76. In the light of these authorities it can be seen that the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults.
77. It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other 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.
78. I should elaborate this a little:
i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact) [1993] 1 FLR 940. It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.
ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in In re T (Adult: Refusal of Treatment) [1993] Fam 95, where a vulnerable adult's capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add, with reference to the observations of Sir James Hannen P in Wingrove v Wingrove (1885) 11 PD 81, of the Court of Appeal in In re T (Adult: Refusal of Treatment) [1993] Fam 95, and of Hedley J in In re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 WLR 959, that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.
iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.
79. I am not suggesting that these are separate categories of case. They are not. Nor am I suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is 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. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.
80. It will be noticed that I have referred to the inherent jurisdiction as being exercisable not merely where a vulnerable adult is, but also where he is reasonably believed to be, incapacitated. As I have already pointed out, it has long been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction. As Singer J put it in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [9], and I agree, the court has power to make orders and to give directions designed to ascertain whether or not a vulnerable adult has been able to exercise her free will in decisions concerning her civil status.”
At paras [82] – [83] he set out what he had in mind when he referred to a vulnerable adult:
“82. In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.
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. That is all.”
Turning to the powers of the court at para [84] he said
“84. As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult. But this apart, the court's powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising its inherent parens patriae jurisdiction in relation to children. Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults.”
In relation to the exercise of the court’s powers at para [96] he said
“96. It is elementary that the court exercises its powers by reference to the incompetent adult's best interests. And as Sumner J pointed out in M v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, at paras [99]-[100], the key to where a person's best interests lie is to be found in an application of the 'balance sheet' the use of which was suggested by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at page 560.”
The Mental Capacity Act 2005 received the Royal Assent on 7th April 2005 but was not fully in force until 1st October 2007. I shall return to the terms of the Act later.
Following SA the issue of the Court’s inherent jurisdiction was considered in a number of cases. I shall take them chronologically.
In Local Authority X v MM and KM [2007] EWHC 2003 (Fam) Munby J was concerned with an adult, MM, who suffered from paranoid schizophrenia. She had formed a relationship with KM who also had mental health difficulties. MM took up residence in supported accommodation and there was an agreement which included that KM would not attend the unit, she would inform the staff if she intended to go out and that she would return by a fixed time. On a number of occasions, and encouraged by KM, MM left the unit without warning and for extended periods of time, apparently sleeping rough and not receiving her medication. The local authority received information indicating that KM was proposing to take MM to stay with his brother in a different part of the country. The local authority issued a Part 8 claim form and an interim order was made that she lacked capacity to decide where she should reside, who she should associate with and that it was not in her best interests to be removed from the unit or to have contact with KM. Munby J concluded that whilst MM had the capacity to consent to sexual relations she lacked the capacity to litigate, to manage her finances, to decide where and with whom she should live, and to decide with whom she should have contact. She also lacked the capacity to marry. Whilst Munby J considered the authorities that looked at capacity (see paras [62] – [96]) this case did not directly consider the case of SA.
In A Local Authority v A (by her Guardian ad Litem); A Local Authority v C [2010] EWHC 978 (Fam) Munby LJ (sitting as Judge of the Family Division) had to consider linked cases, one was proceeding in the Family Division and the other in the Court of Protection. The first relates to a child and the second to an adult who lacked capacity. Both suffer from Smith Magenis Syndrome. They both lived at home in the care of their respective parents. Although the legal context differs between the two cases, reflecting the different statutory (and, more generally, the different legal) regimes which apply to children and incapacitated adults both cases raised the same important issue regarding Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. At para [68] Munby J said:
“68. Section 47 apart, if a local authority seeks to control an incapacitated or vulnerable adult it must enlist the assistance of either the Court of Protection or the High Court: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at paras [21]-[22], and cf Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, at para [19], and E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, at paras [2], [69]. Otherwise it may find itself being sued in tort: see Re S (Vulnerable Adult) [2007] 2 FLR 1095 at para [19]. The Court of Protection has statutory jurisdiction under the Mental Capacity Act 2005 in relation to adults who lack capacity. The High Court has an inherent jurisdiction in relation not merely to adults who lack capacity but also to vulnerable adults: see Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867.”
In A Local Authority v Mrs A by her Litigation Friend, the Official Solicitor [2010] EWHC 1549 (Fam) Bodey J was sitting in the Court of Protection where a local authority were seeking declarations that Mrs A lacked capacity to decide whether to use contraception and that it would be in her interests to be required to receive it. At para [73] he concluded that Mrs A lacked capacity to take a decision for herself about contraception. In considering whether he had jurisdiction to grant an injunction against Mr A he said at para [79]
“79. It is established on the authorities that, notwithstanding the 2005 Act, the inherent jurisdiction is alive and well in circumstances where an individual, even if not incapacitated, is "… either under constraint, or subject to coercion or undue influence, or for some other 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" per Munby J in A Local Authority v MA NA and SA 2005 EWHC 2942 (Fam) at paragraph 77. Where such circumstances pertain, as I have held they do here (in fact, I have found Mrs A to be presently incapacitated as regards contraception) the court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions. The purpose, in respect of a capacitated but vulnerable adult, is to create a situation where he or she 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. In respect of an incapacitated adult, I consider the same should apply, except that the aim of providing him or her with relief from the coercion is first to gain capacity and, if achieved, then to enable him or her to reach a free decision. “
In LBL v RYJ and VJ [2010] EWHC 2665 (Fam) Macur J considered orders being sought in the Court of Protection by a local authority seeking declarations in relation to an 18 year old woman that she lacks capacity to make day to day decisions concerning her daily life and to appoint an appropriate officer of the local authority to be made Health and Welfare and Finance Deputy. In the alternative, if RYJ is determined to have capacity, the local authority sought to invoke the inherent jurisdiction of the court, initially seeking those orders commonly following decisions as to “best interests” of an incapacitated person and amounting to empowering the local authority to direct where she should reside, be educated, with whom she had contact and appointing the local authority to receive benefits to her. Macur J concluded, on the evidence, that the presumption of capacity was not displaced in RYJ’s case in relation to care, contact, residential education and residence. Having reached that conclusion she turned to consider the application by the local authority to invoke the inherent jurisdiction. At para [62] she said
“62. I do not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst 'capacitous' for the purposes of the Act, are 'incapacitated' by external forces –whatever they may be- outside their control from reaching a decision. (See SA (A Vulnerable Adult ) [2005]EWHC 2942 @ para 79; A Local Authority and Mrs A [2010] EWHC 1549 @ para 79). However, I reject what appears to have been the initial contention of this local authority that the inherent jurisdiction of the court may be used in the case of a capacious adult to impose a decision upon him/her whether as to welfare or finance. I adopt the arguments made on behalf of RYJ and VJ that 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 decisions.”
In LB of Ealing v KS and others [2008] EWHC 636 (Fam) Wood J was concerned with SK, a 33 year old woman where the local authority sought declarations that she lacked capacity to marry, decide her residence, who she should have contact with and consent to sexual relations. In that case it was agreed that she lacked capacity to litigate on her own account, marry, decide her residence, consent to a particular medical procedure, consent to sexual relations at times and consider the issue of contraception.
In relation to the capacity to consent to sexual relations one of the Respondents submitted that even if Wood J considered SK did have capacity, he should invoke the residual inherent jurisdiction to protect this vulnerable young woman at least until the position in relation to contraception is clear (the ‘third option’ referred to below). After having been referred to paragraphs [76] – [79] of SA (see paragraph 23 above) Wood J said at para [148]
“148. I, like Mr. Bagchi, do not read paragraph 79 quoted above, (and particularly the passage to which I have added emphasis) as supporting a proposition that the court possesses jurisdiction to prevent SK having sexual intercourse with any potential partner if it is considered by others not to be in her best interests so to do. Munby J. was, I respectfully suggest, simply indicating that there are instances where a person cannot in truth consent although not incapacitated within the meaning of the 2005 Act. He was, I suggest, 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. Once again, it seems to me to be a wholly disproportionate interference with her rights to respect for her private and family life, of which sexual relations are a significant aspect, to invoke a protective jurisdiction of this kind. I therefore reject her third option.”
Mr Bowen submits that the obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated by the Human Rights Act 1998 (HRA) require the court to retain the inherent jurisdiction to comply with its obligations, in particular under Articles 3 and 8. He submits the common law has to develop for the positive obligations imposed by the HRA to be given effect; if DL’s argument succeeds there will be a new “Bournewood gap”.
Miss Lieven Q.C. submits that the effect of the LA’s case is to impose a positive obligation on state interference in the private life of people with capacity which, she submits, is not supported on closer analysis of the authorities which all concerned either children or adults who lack capacity.
Mr Bowen relies on In re F (Adult: Court’s Jurisdiction) [2001] Fam 38 where the local authority sought declarations from the court as to residence and contact concerning a mentally handicapped woman who was unable to care for herself. Sedley LJ (with whom Dame Elizabeth Butler Sloss P and Thorpe LJ agreed) considered the submission made by the Appellant mother that as the woman did not suffer from mental impairment sufficient to bring her within section 1 (2) of the Mental Health Act 1983 the court’s inherent jurisdiction to make declarations in respect of incapacitated adults had been ousted by the comprehensive statutory framework for guardianship contained in the Mental Health Act. In rejecting that submission he said at 57 C
“ It does not of course follow that the courts are free to devise new forms of social control unsanctioned by Parliament.”
He continued at 57 E
“By paragraph (c) of article 5 a specific exception is made to permit the state to restrict the personal freedom of the persons of unsound mind - a class which, within limits, it is for each member state to define: see Winterwerp v The Netherlands (1979) 2 EHRR 3887. The power is itself however, subject to at least two major constraints: it must be in accordance with a procedure prescribed by law, and any such law must in turn accord the respect due under article 8 to private and family life. The first of these elements does not mean that the common law cannot grow or shape itself to changing social conditions and perceptions: see SW v United Kingdom; CR v United Kingdom (1995) 21 EHRR 363. It means that any such change must be principled and predictable. For the reasons set out in the two preceding judgments I consider that the development of the law which our decision represents passes both limbs of this test.
The second element will be, in the light of this judgment, a matter to which the court that is to hear the substantive application for a declaration must have regard. But it should be clearly said now that it is T’s welfare which will remain throughout the single issue. The family life for which article 8 requires respect is not a propriety right vested in either parent or child: it is as much an interest of society as of individual family members, and its principle purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare. As the European Court of Human Rights said in Marckx v Belgium (1979) 2 EHRR 330, 342, article 8 (I):
“does not merely compel the state to abstain from….interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.”
In the present state of the law as it affects T, it is upon the court and the local authority that any such positive obligation comes to rest. One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called “Bournewood gap” in the protection of those without capacity: see [1999] I AC 4588, 497, per Lord Steyn.”
In Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) Munby J was concerned with S, an incapacitated adult who suffered from a chromosomal abnormality and, as a result, had severe learning disabilities. Although an adult in law, S functioned at approximately the same developmental level as a 2 year old and lacked the capacity to make decisions for himself. The local authority sought declarations that it was lawful to remove S from the care of a parent who was willing to go on looking after him. In considering the balance between the parents and S’s article 8 rights he said at para [32]
“As the court has long recognised - the principle goes back at least as far as Marckx v Belgium (1979-80) 2 EHRR 330 - the ‘respect’ for private and family life which Art 8 guarantees imposes on the State not merely the duty to abstain from inappropriate interference but also, in some cases, certain positive duties. The State may be obliged to take positive action to prevent or stop another individual from interfering with private life. As the court put it in Botta v Italy at 257 (para 33):
‘While the essential object of Art 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves…. In order to determine whether such obligations exits, regard must be had to the fair balance that has to be struck between the general interest and the interest of the individual’.
He continued at para [39]
“How then are such conflicts to be resolved? The father cannot pray Art 8 in aid as a trump card. On the contrary, and as Botta v Italy shows, the State, even in this sphere of relations between purely private individuals, may have positive obligations to adopt measures which will ensure effective respect for the son’s private life. Thus the State, in the form of the local authority, may have a positive obligation to intervene, even at the risk of detriment to the father’s family life, if such intervention is necessary to ensure respect for the son’s Art 8 rights. And the State, in the form of the High Court, has a positive obligation to act in such a way as to ensure respect for those rights.”
Similar observations are made in later decisions of Munby J: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam) at para [110]; A Local Authority v A [2010] EWHC 978 (Fam) para [80] – [96] in particular [94] and SA (supra) para [40] – [41], [102] and [130].
Miss Lieven Q.C. makes the point that all these cases involved children or incapacitated adults. She submits the positive obligation under Article 8 cannot be extended in the way sought by Mr Bowen in this case to adults who do not fall within the MCA.
Mental Capacity Act 2005
The MCA came into force on 1st October 2007. Miss Lieven Q.C. observes in her skeleton argument that throughout the development of the inherent jurisdiction, the Courts had repeatedly lamented the absence of any form of statutory code to assist the mentally incapacitated individual. Notwithstanding the Law Commission Report of 1995 (Law Commission Report 231), no steps were taken to introduce a Bill until 2003 when a draft Mental Incapacity Bill was presented to Parliament.
A Joint Committee on the Bill published a report on the 28th November 2003. That report made 99 recommendations. Paragraphs 64, 72 and 78 of that report emphasise the principle that capacitated individuals had a right to act as they saw fit and make decisions that might be deemed unwise or irrational. They made the following recommendation:
16. We considered carefully the dilemma created when a person with apparent capacity was making repeatedly unwise decisions that put him/her at risk or resulted in preventable suffering or disadvantage. We recognise that the possibility of over-riding such decisions would be seen as unacceptable to many user groups. Nevertheless, we suggest that such a situation might trigger the need for a formal assessment of capacity and recommend that the Codes of Practice should include guidance on:
whether reasonable doubt about capacity and the potentially serious consequences of not intervening indicated the need for an appropriate second opinion;
circumstances in which the statutory authorities should be responsible for providing a level of support as a safeguard against abuse; and
where there was genuine uncertainty as to capacity and an urgent decision was required to prevent suffering or to save life, the benefit of doubt would be exercised to act in that person's best interests in relation to any assessment of capacity. (Paragraph 78)
The Government Response to the Joint Committee report was published in February 2004. In response to recommendation 16 the Government responded as follows
We are aware of the difficulties presented in such circumstances and accept that the Codes will need to provide guidance in such circumstances. We are therefore grateful to the Committee for their consideration of these issues and we will use their recommendations as the basis for considering how the whole issue of unwise or self-destructive decisions is dealt with in the Codes.
The relevant sections of the MCA for the purposes of this case are as follows:
1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if 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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
4. Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
48 Interim orders and directions E+W
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b )the matter is one to which its powers under this Act extend, and
(c )it is in P's best interests to make the order, or give the directions, without delay.
The statutory structure is supplemented by an extensive Code of Practice, which has statutory effect (s 42 (2) MCA). The Code states as follows:
Para 2.8 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. However, it is important to provide appropriate advice and information.
Principle 3: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ (section 1(4))
Para 2.10: Everybody has their own values, beliefs, preferences and attitudes. A person should not be assumed to lack the capacity to make a decision just because other people think their decision is unwise. This applies even if family members, friends or healthcare or social care staff are unhappy with a decision.
Submissions
On behalf of the LA Mr Bowen’s submissions can be summarised as follows:
It is open to the LA to invoke the inherent jurisdiction of the High Court to make declarations (and injunctions in support) as to the ‘best interests’ of GRL and ML in the event that they are found to lack capacity because of duress or coercion by DL. The ‘best interests’ jurisdiction has been largely replaced by that of the Court of Protection under the MCA 2005. However, the jurisdiction survives and in one crucial respect it is wider than that of the Court of Protection, because it allows the court to exercise its protective jurisdiction in relation to adults who are incapacitated for some reason other than an ‘impairment of, or a disturbance in the functioning of, the mind or brain’. For example, when their capacity to make decisions is vitiated by coercion or undue influence by a third party: see SA,ibid, para [79] per Munby J. On such an application the court will have the power “to make whatever orders and to give whatever directions are needed to ascertain the true wishes of a vulnerable adult or to ascertain whether a vulnerable adult is able to exercise her free will or is confined, controlled, coerced or under restraint”: see SA, ibid, para [94]
The LA have considered and rejected other routes whereby ML or GRL could be protected. These are detailed in their skeleton argument at paragraph 17 (e.g. an application for an Anti-Social Behaviour Order under the Crime and Disorder Act 1998) and, he submits, there is no real dispute that alternative remedies are not available. During the hearing I raised the issue of the Family Law Act 1996 and Mr Bowen drew the court’s attention to the fact that the parties in this case are not associated persons and s 60 (which permits third parties to make applications) has not yet been implemented. The Protection from Harassment Act 1997 did not apply either, as an application needs to be made by the person who was allegedly being harassed, which in this case would not include the LA.
A vulnerable adult is not necessarily someone who lacks capacity: see SA, ibid, para [82] – [83]. The High Court may direct (with his consent) the Official Solicitor to carry out a Harbin v Masterman investigation to enable persons who are the subject of the application to be interviewed in circumstances where their true wishes can be ascertained: see SA, ibid, para [93]. Vulnerability, Mr Bowen submits, is sufficient to engage the jurisdiction.
SA was a case which preceded the coming into force of the MCA. However, case law since then has affirmed that the inherent jurisdiction continues to be available in such cases (A Local Authority v A [2010] EWHC 978 (Fam) para [68]; A Local Authority v Mrs A [2010] EWHC 1549 (Fam) paras [73] – [79]; LBL v RYJ and VJ [2010] EWHC 2665 (COP) paras [63] – [64]; London Borough of Ealing v KS and others [2008] EWHC 636 (Fam) para [148]). These cases support the proposition that the High Court retains its inherent jurisdiction in relation to adults whose capacity is compromised by coercion or undue influence, which may be exercised for the purpose of creating a situation where they can make decisions without such influence.
The LA and the Courts also have statutory obligations as public authorities under s 6 HRA to take measures to protect vulnerable individuals, which derive from the ‘positive obligations’ on the State arising under a number of Convention Articles, notably Articles 3 and 8. The court may enforce these obligations by invoking the inherent jurisdiction to include vulnerable adults even when they have capacity under the MCA.
As to Article 8, the Strasbourg court has long recognised that the “respect” for private and family life guaranteed by Article 8 may impose on the State not merely the duty to abstain from interference but also, in some cases, certain positive duties. The State may be obliged to take positive action to prevent or stop another individual from interfering with someone’s private life (see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) paras [32] and [39]; Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 978 (Fam) para [110]; A Local Authority v A [2010] EWHC 978 (Fam) paras [80] – [96].) For the court to determine that the inherent jurisdiction is no longer available for vulnerable adults would create a “Bournewood gap” (per Sedley LJ in Re F ibid).
The LA acknowledges that it may also owe competing duties under Article 8. It owes a duty not to unlawfully interfere with DL’s rights to respect for private and family life. It also owes a similar duty to ML and GRL, who have expressed the wish to be left alone without interference by the LA, however well meaning. The LA must strike a delicate balance between these competing rights and duties. The LA submit that, even if ML and GRL are genuinely ‘consenting’ to DL’s behaviour (which the LA does not accept) the balance comes down in favour of taking proportionate action to protect ML and GRL. They rely on what Sedley LJ said at p 57 H in Re F, ibid, regarding the purpose of Article 8 “...is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare.”
Similar positive obligations arise under Article 3, if the conduct of a third party amounts to inhuman or degrading treatment.
These positive obligations are placed on the LA and the Court, which are both public authorities for the purposes of s 6 HRA. The obligations on the LA are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court (A Local Authority v A, ibid, para [96]).
The bare assertion that ML and GRL consent to DL’s behaviour is not determinative of whether the court has jurisdiction to restrain that behaviour to discharge its positive protective obligations under s 6 of the HRA. It has long been recognised both in domestic law and under the Convention that the State is entitled to regulate certain forms of behaviour even where the individual consents to it. In Laskey, Jaggard and Brown v United Kingdom (1997) EHRR 39 the EHCR held that the applicants’ convictions on assault charges arising out of consenting sado-masochistic sexual practices did not violate Article 8 as the prohibition on such conduct was a proportionate means of meeting the legitimate aim of protecting health. In Pretty v United Kingdom (2002) 35 EHRR 1 the court considered whether the prohibition on assisted suicide in s 2(1) Suicide Act 1961 was a breach of the applicant’s right to respect for private life in Article 8. The Court, referring to Laskey ibid, noted that “...the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another’s hand, may raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case” para [42]. A balance has to be struck between the conflicting interests. If the balance comes down in favour of protecting vulnerable people then the court must have jurisdiction in order to be able to give effect to that conclusion. Whether the jurisdiction is to be exercised will require a balance to be struck between the competing interests of, on the one hand, DL, ML and GRL’s right to respect for their private and family life and, on the other, the need to protect the health and welfare of ML and GRL as vulnerable individuals.
On behalf of DL Miss Lieven Q.C.’s submissions can be summarised as follows:
(1) Her primary submission is that the court’s inherent jurisdiction, in the SA sense, has not survived the MCA. Her fall back position is, if it has, it has only survived to a very limited extent. She submits that the MCA and the supporting Code of Guidance was intended to deal comprehensively with issues around those who lacked capacity to make decisions for themselves. If the only ground for interference is “vulnerability” then that is an area covered by the MCA and its very careful approach to capacity. Otherwise the courts could use the concept of “vulnerability” as a lesser test to that of capacity and thereby circumvent the careful approach in the MCA. Where a person with requisite capacity has been provided with clear advice as to the options and avenues open to him or her, and that such advice has been provided without the source of suspected undue influence, then the court can order no more action be taken. Whilst it may be that such a decision is not in the objective best interests of the person concerned, they have reached that decision independently and with the benefit of unencumbered advice. An individual with capacity can make a decision which is not in his/her objective best interests, and the court has no power to intervene. To do otherwise offends against the principle of autonomy. She emphasises that neither DL, ML and GRL support this litigation.
(2) It is necessary, she submits, to consider the scope and development of the inherent jurisdiction. The House of Lords in Re F (Sterilisation) [1990] AC 1 identified areas in which the Mental Health Act 1959 did not adequately meet the day to day needs of adults who were unable to make decisions for themselves. In so doing the House of Lords rediscovered the court’s inherent jurisdiction and applied the common law doctrine of necessity to rule on whether (i) a course of action was in the best interests of the incapacitated party and (ii) whether the intended action was thus lawful. In A (by his Litigation Friend the Official Solicitor) v A Health Authority and others [2002] EWHC 18 Munby J noted at para [40] that the jurisdiction was not confined to cases involving medical treatment, but incorporated all matters that conduces to the incompetent adult’s welfare and happiness, including companionship and his or her social environment. The basis of any remedy was with reference to whether the declaratory relief sought was in the incompetent adult’s best interests. At para [43] he stated that this encompassed a welfare appraisal in the widest sense taking into account a wide range of ethical, social, moral, emotional and welfare considerations. The nature of the jurisdiction has been described as flexible and should be approached on a case by case basis and be able to respond to social needs (Sir Thomas Bingham in Re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1 and Dame Elizabeth Butler Sloss P in Re Local Authority (Inquiry: Restraint on publication) [2003] EWHC 2746 (Fam) where she stated at para [96]: “"It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so”.
(3) Miss Lieven Q.C. submits that it was always the Court’s position that the inherent jurisdiction operated as a short term mechanism to fill the gap that existed and meet the needs of those who would fall through that gap. That approach was subsequently widened to incorporate, within the inherent jurisdiction, not only those who lacked capacity, but adults who did have capacity but who might be under constraint, subject to coercion or undue influence. In SA ibid Munby J set the position out in paras [76] – [79].
(4) Miss Lieven Q.C. summarised the principles that emerged in the scope of the inherent jurisdiction before the MCA:
Autonomy: (see B v An NHS Trust [2002] EWHC 429 (Fam) Dame Elizabeth Butler-Sloss P para [27]). This principle could only be violated in restricted circumstances, which in the common law was described as the principle of necessity. Cases have expressly emphasised that the right of choice or autonomy exists whether the reasons for that choice are rational or not. These principles are not limited to cases concerning medical treatment (see D-R (Adult Contact) [1999] 1 FLR 1161).
Capacity: The principle of autonomy is based upon a condition precedent, that the individual has capacity to reach the decision. Every adult is presumed to have that capacity, but that presumption is one which can be rebutted. The general rule is that the test of capacity is the ability to understand the nature and quality of the transaction at stake, whether that is marriage, sexual intercourse, the making of a will, to consent to medical treatment or to conduct litigation. The scope for intervention was extended in Re SK [2004] EWHC 3202 (Fam) by Singer J in a forced marriage case. Due to the specific characteristics of forced marriage the individual concerned may be incapacitated by virtue of duress/coercion (para [8]). In Local Authority X v MM and KM [2007] EWHC 2003 (Fam) Munby J summarised the law as to capacity at para [92].
Necessity: This doctrine renders lawful that which absent consent would otherwise be unlawful.
Best Interests: In reaching conclusions as to whether a remedy is in fact in the best interests of the individual concerned, both courts and local authorities alike must not act as “social engineers” (Re O (a minor)(custody or adoption) [1992] 1 FCR 378 per Butler-Sloss LJ).
The right to counsel or advice: The court has upheld (specifically in respect of the right to have treatment withdrawn or the right to refuse treatment) that an individual assessed as having the requisite capacity to reach a decision can be dissuaded from adopting that course. Where there is capacity advisors can explore the scope of the decision and seek to persuade the individual to alter that decision.
Vulnerability: In SA (supra) Munby J attempted to provide a definition for what might be a vulnerable adult, making it plain that such a person could not be rigidly and narrowly defined (see paras [81] – [83]).
(5) Miss Lieven Q.C. places emphasis on the fact that SA predates implementation of the MCA, as the foundation of her main submission is that the MCA filled the gap. She refers to para 64 of the Joint Committee Report (supra) and, what she submits, is the plain intention that the Bill provide a comprehensive approach to issues around capacity and best interests:
64. We note that the only exception in current law to the principle that a competent person has a right to make such decisions for him/herself is in the case of treatment for a mental disorder where the wishes of a competent person could, under specific circumstances, still be over-ruled under the terms of the Mental Health Act, 1983. In all other situations a person's 'decision-making capacity' is the pivotal issue that determines whether his/her decision must be respected or not. The same principle of autonomy also applies to decisions outside that of health care.
It was likewise accepted that a fundamental right for all individuals with capacity was to make decisions that might be deemed unwise or irrational (see paras 72 and 78). Miss Lieven Q.C. submits that what was envisaged in such circumstances was ultimately to provide a level of support to safeguard against abuse and no more, absent incapacity. It was also acknowledged in the report that whomsoever one resided with or whom one spent a considerable degree of time with there would be a degree of influence. Therefore, the Bill was drawn up with express consideration of the issues around the potential influence (and by implication potential duress) that may exist in a person’s home and from close family members (see para 104). She relied on recommendation 16 from The Joint Committee and the Government’s response set out at paragraphs 42 and 43 above.
Having traced through this history Miss Lieven Q.C. submits that the MCA codifies the gaps that the inherent jurisdiction had filled. Whilst the common law retains significant relevance as to the interpretation of the Act, it must be recalled that such common law only emerged as a consequence of a gap identified by the courts. With the MCA and its accompanying Code of Practice, all rights pertaining to capacity have been codified and a new Court has been created to hear the determination of those rights. It has been held that the common law cannot go behind statute where that statute was intended to be exhaustive (see Black v Forsey [1988] S.C. (H.L) 28).
(6) Miss Lieven Q.C. submits the cases that have considered the inherent jurisdiction since the coming into force of the MCA have dealt with importantly different situations to the present case. (see: Ealing LBC v KS, LU and others [2008] EWHC 636 (Fam)). In A: A Local Authority v (1) A (2) B and Equality and Human Rights Commission (intervenor); In the matter of Claimant: A Local Authority v (1) Claimant (2) Defendant (3) E and Equality and Human Rights Commission (intervenor) [2010] EWHC 978 (Fam), Munby LJ (sitting as a first instance judge in the Court of Protection) briefly confirmed that it was his view that the High Court retained the SA jurisdiction in relation to vulnerable adults, but the case concerned children and incapacitated adults so, submits Miss Lieven Q.C., are of little or no assistance on the issue before the court. In A Local Authority v Mrs A (by her Litigation Friend the Official Solicitor) and Mr A [2010] EWHC 1549 (Fam) Bodey J heard an application from a local authority seeking a declaration that (i) Mrs A lacked capacity to decide whether to use contraception and (ii) that it was in her best interests to receive contraception. Bodey J dealt with the question of the retention of the inherent jurisdiction. Miss Lieven Q.C. relies of what he states at para [79] “...The purpose in respect of a capacitated but vulnerable adult, is to create a situation where he or she 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.” Miss Lieven Q.C. submits that notwithstanding her principal argument that the inherent jurisdiction cannot apply in a case like this, if it does survive as a protective measure, the remedy and relief as outlined by Bodey J is of a limited degree and nature and does not go beyond that envisaged within the MCA Code of Practice. This, it is submitted, is endorsed by Macur J in LBL v RYJ and VJ (supra) paras [62], [63], [65] [74 – 75].
Miss Lieven Q.C. submits that having codified the common law Parliament had the opportunity to embrace the wider definition as set out in SA, yet chose not to go down that route. Instead Parliament, via the MCA and the Code of Practice, created a mechanism under which assistance in such cases could be provided to the potentially incapacitated person, so they could make a decision for themselves (see Code of Practice para 2.8). The mechanism in the MCA and the Code restricted the MCA’s reach to (i) the provision of advice and assistance to ensure that the potentially incapacitated person can reach a decision free from influence; and (ii) the capacity assessment. On the facts of the instant case those mechanisms have been applied over a lengthy period and the conclusion was that there was no incapacity. That conclusion has been reached by trained social workers. It follows that the intention of Parliament was for this group to be catered for under the MCA. It cannot be asserted that its existence was ignored, as the Code specifically covers such people and provides for them receiving assistance. Thus, submits Miss Lieven Q.C., there is no gap within the statute from which the inherent jurisdiction can now operate absent incapacity. In her oral submissions she went further. She submitted that s 48 MCA gave the court power to investigate the issue of capacity and, if necessary, interim protective orders can be made to enable the person who is the subject of the application to make decisions.
In the event of her primary submission not succeeding, Miss Lieven Q.C. submits the inherent jurisdiction is limited to cases where:
The individual is “vulnerable”’ and
They are clearly found to lack capacity to make the relevant decisions for
reasons that stand wholly outside those in s.2(1) of the MCA e.g. duress; and
The court is using the inherent jurisdiction solely for the purpose of
allowing that individual to be in a position to make a capacitous decision.
Miss Lieven Q.C. relies on what Macur J states at para [62] in LBL v RYJ supra.
Any attempt to go beyond the judgment of Macur J in LBL v RYJ (supra) places the LA in conflict with Article 8. Both ML and GRL have expressed the view that they wish to reside with DL. In seeking declaratory relief and an injunction the LA have acted against the express wishes of ML and GRL. This is a family, all of whom have capacity (save for very recently GRL), which for all its possible tensions and unhappiness have chosen a way to live together. ML and GRL have been fully consulted on alternative remedies that are available to them, yet they have elected not to pursue them. It would be contrary to Article 8 for the Court to interfere in those individual decisions about their own family life and wish to preserve that life together.
(9) Miss Leiven Q.C. does not accept the LA’s contention that there is a positive obligation under Article 8 on the LA to gain a court order to intervene in a family relationship between adults with capacity. In her oral submissions she placed great emphasis on the words of Article 8. In Local Authority X v MM and KM (supra) Munby J stated that in the case of a competent adult, the personal autonomy that was inherent in Article 8 meant that it was for the individual to decide with whom that individual wishes to include (or exclude) in his inner circle. Miss Lieven Q.C. also relied on what Lord Bingham said in R (Razgar) v SSHD [2004] 2 AC 368 and the decision of the ECtHR in Neulinger and Shuruk v Switzerland [2010] EHCR 2053. She submits what these cases show is that Article 8 starts from the position of respecting individuals’ choices about their own private life, and the State should be extremely slow to interfere with those choices, however bizarre at times they might appear to be to other members of society. The very raison d’etre of Article 8 is the protection of individuals’ family life from the interference of the State. However well intentioned the LA’s actions may be, that is precisely what they are doing. In terms of judging the proportionality of interference, the position will of course be different where the case involves children or those without capacity. In such situations the State may have a positive obligation to intervene to protect, and such interference may well be proportionate. However, with capacitous adults who have made their own choices about their family life, it will not be proportionate for the State to intervene in those choices.
If the court determined that the inherent jurisdiction was available in cases like this Miss Lieven Q.C. submits that it would open the floodgates to the Court intervening in situations and overriding the views of capacitous individuals.
Discussion
The issues raised in this case bring into sharp focus the extent to which the court’s inherent jurisdiction can be invoked in relation to adults who have capacity, in that they do not fall within the provisions of the MCA. One of the main issues of principle between the parties is the extent to which the inherent jurisdiction has survived the implementation of the MCA and the statutory Code of Guidance.
Looking at the development of the inherent jurisdiction it was revived in the case of Re F (supra) and, prior to the implementation of the MCA, it was through the use and development of the inherent jurisdiction that declarations and (if required) supporting injunctions and orders were sought in relation to adults where it was considered the protective jurisdiction was required. Whilst many of these cases related to medical treatment they also covered wider aspects, such as forced marriage. As has been observed in a number of cases, the development of the jurisdiction is often in response to changing social needs.
Miss Lieven Q.C.’s submissions are, on one view, disarmingly simple. Unless the person who is the subject of the proceedings lacks capacity as defined by the MCA (and therefore comes within the provisions of the MCA) there is no legal basis to invoke the inherent jurisdiction. She submits that the vulnerable adult (in the SA sense) was considered during the Parliamentary scrutiny of the Mental Capacity Bill. The situation is, she submits, covered by the ability of the court to make interim investigations as to capacity under s 48 MCA, any interim orders and the provisions in the Code regarding the giving of advice and guidance. Her fall-back position is that if the inherent jurisdiction does survive, it is limited to put in place measures to enable such persons to make decisions free from what-ever undue influence or duress there may be.
Munby J attempted to define the term ‘vulnerable adult’ in SA, but made it clear that it was not definitive and was not limited to adults who were vulnerable. What he was seeking to do was provide for a class of persons who the protective inherent jurisdiction of the court could, in appropriate cases, be invoked. By doing so he was not seeking to undermine the clear legal principles regarding autonomy or seeking to develop a paternalistic jurisdiction of the court which could override the decisions of those with capacity which may objectively be thought to be unwise. I agree with the observations made by Wood J in London Borough of Ealing v KS and others (supra) at para [148] “..[I] do not read paragraph 79 quoted above, (and particularly the passage to which I have added emphasis) as supporting a proposition that the court possesses jurisdiction to prevent SK having sexual intercourse with any potential partner if it is considered by others not to be in her best interests so to do. Munby J. was, I respectfully suggest, simply indicating that there are instances where a person cannot in truth consent although not incapacitated within the meaning of the 2005 Act. He was, I suggest, 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.’ This view is echoed by Macur J in LBL v RYJ (supra) when she rejects the submission of the local authority in that case that the court retained jurisdiction to act in an adult’s best interest (not an adult in the SA sense) when they did not come within the provisions of the MCA.
In relation to the obligations under the HRA the position in relation to Article 8, as set out by Sedley LJ in Re F (supra), make it clear that there may be positive obligations inherent in an effective respect for family life. The right is not to family life as such but to respect for it. As Sedley LJ stated at p 57 H “The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare....In the present state of the law as it affects T, it is upon the court and the local authority that any such positive obligation comes to rest. One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the “Bournewood gap” in the protection of those without capacity.....Far from inhibiting T’s liberty, such answers help to reassure it.” Whilst that case concerned an adult who lacked capacity that does not mean that such a positive obligation cannot arise, in appropriate circumstances, in relation to a vulnerable adult in the SA sense.
Decision
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:
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).
It is accepted that the essence of this jurisdiction is to be flexible and to be able to respond to social needs.
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.
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.
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 5th November 2010 there was extensive reference to Munby J’s judgment in SA.
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.
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.
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 the event that the court determined the jurisdiction exists, as I have, the parties have been able to agree directions as to the future conduct of this litigation.