A Local Authority and Others v Dl
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Date | 2012 |
| Court | Court of Appeal (Civil Division) |
Vulnerable adult – Capacity – High court – Inherent jurisdiction – Local authority seeking injunction to protect elderly parents of adult child – Parents not lacking mental capacity – Whether High Court having inherent jurisdiction to grant protective injunction in respect of vulnerable adults who did not lack mental capacity – Whether court’s inherent jurisdiction to protect adults surviving inception of statutory scheme – Whether exercise of inherent jurisdiction compatible with European Convention for the Protection of Human Rights and Fundamental Freedoms – Human Rights Act 1998, Sch 1, Pt I, art 8 – Mental Capacity Act 2005, s 2(1).
The appellant, a man in his fifties, lived with his elderly parents. His father owned the house. His mother, being physically disabled, received twice daily visits from health and social care professionals commissioned and paid for by the respondent local authority under its statutory community care duties. The respondent became concerned about the appellant’s conduct towards his parents, which was alleged to be aggressive. The respondent had documented incidents which, it said, chronicled the appellant’s behaviour and which included physical assaults, verbal threats, controlling where and when his parents might move in the house, preventing them from leaving the house, and controlling who might visit them, and the terms upon which they might visit them, including health and social care professionals providing care and support for his mother. There had also been consistent reports that the appellant was seeking to coerce his father into transferring the ownership of the house into the appellant’s name and that he had also placed considerable pressure on both his parents to have his mother moved into a care home against her wishes. In order to protect the two elderly people, the respondent applied ex parte for an injunction seeking to restrain the appellant’s behaviour towards his parents and the respondent’s staff. An interim injunction was granted and a Harbin v Masterman order was also made, and as a result the Official Solicitor appointed a social worker who interviewed the appellant’s parents. The social worker provided a written report for the court, in which he observed that the appellant’s parents were unduly influenced by their son to such a degree that their capacity to make balanced and considered decisions was compromised, but that they did not
lack capacity in the terms of the Mental Capacity Act 2005. Under s 2(1)a of the 2005 Act, the provisions of that Act were limited to any person who was ‘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’. The matter returned to the Family Division of the High Court for determination. The judge found, as a preliminary issue, that the court retained its inherent jurisdiction to protect adults who did not lack mental capacity and were not protected by the 2005 Act; and that the 2005 Act did not remove that jurisdiction. The judge held that the court had to retain its inherent jurisdiction in order to comply with its obligations to protect the right to respect for private and family life under art 8b of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998). By that time, the father’s mental well-being had deteriorated to the extent that it was agreed that he lacked capacity within the meaning of the 2005 Act. The judge made a wide-ranging interim injunction restraining the appellant’s behaviour under the court’s inherent jurisdiction with respect to the mother, and under the 2005 Act with respect to the father. The appellant appealed, arguing that the 2005 Act and its supporting Code of Practice represented a comprehensive statutory provision for the care and protection of adults, and that Parliament had accordingly intended that it would be impermissible for the High Court to exercise any jurisdiction in that respect, since the common law should not go behind a statutory scheme which Parliament had created with the intention that it was exhaustive. The appellant further argued that any extension of the court’s inherent jurisdiction made in recent authorities amounted to a major infringement of the principle of autonomy, opening up the decision of any adult to review by the courts if it were thought to be unwise, notwithstanding that they retained full capacity, whereas the courts had habitually attached a premium to the right of autonomy enjoyed by every individual in a democratic society.
Held – (1) The court’s inherent jurisdiction for the protection of adults had survived the passing of the 2005 Act. The jurisdiction was there to act as a safety net for matters outside the 2005 Act and was in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy had been compromised because they were under constraint, subject to coercion or undue influence, or for some other reason deprived of the capacity to make the relevant decision, or incapacitated or disabled from expressing a genuine consent, ie by matters other than those covered by the 2005 Act. By contrast, the 2005 Act was expressly limited to mental
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a Section 2(1), so far as material, provides: ‘… 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.’
b Article 8, so far as material, provides: ‘(1) Everyone has the right to respect for his private and family life …’
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capacity, as its title made plain. The Act did establish a wide-ranging and a comprehensive statutory code and scheme, but only for those matters within its compass. It would have been open to Parliament to include a provision which restricted the use of the court’s inherent jurisdiction in cases relating to the capacity to make decisions which did not fall within the 2005 Act. However, in the absence of any express provision, the clear implication was that if there were matters outside the statutory scheme to which the inherent jurisdiction applied then that jurisdiction continued to be available. Moreover, it was not easy to define and delineate the group of vulnerable adults, nor was it wise or helpful to place a finite limit on those who might attract the court’s protection in that regard. The ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as might be required, would meet that need more readily (see [8], [32]–[33], [53]–[54], [57], [61], [64], [69] below); Re SA (vulnerable adult with capacity: marriage)[2007] 2 FCR 563 approved; City of Westminster Social and Community Services Dept v C[2008] 2 FCR 146 and LBL v RYJ [2011] 1 FLR 1279 considered.
(2) The use of the inherent jurisdiction was compatible with art 8 of the Convention in just the same manner as the 2005 Act was compatible. Any interference with the right to respect for an individual’s private or family life was justified to protect his health and/or to protect his right to enjoy his art 8 rights as he might choose without the undue influence (or other adverse intervention) of a third party. Any orders made by the court in a particular case had to be only those which were necessary and proportionate to the facts of that case, again in like manner to the approach under the 2005 Act. A facilitative, rather than dictatorial, approach of the court was entirely on all fours with the re-establishment of the individual’s autonomy of decision making in a manner which enhanced, rather than breached, their art 8 rights (see [33], [66]–[67], below); LBL v RYJ [2011] 1 FLR 1279 considered.
Accordingly, the appeal would be dismissed.
Cases referred to in judgmentsA (a child) (deprivation of liberty), Re, Re C (vulnerable adult) (deprivation of liberty)[2010] EWHC 978 (Fam), [2010] 2 FLR 1363.
A local authority v A (test for capacity as to contraception)[2010] EWHC 1549 (Fam), [2011] 2 FCR 553, [2011] 3 All ER 706, [2011] Fam 61, [2011] 2 WLR 878, [2011] 1 FLR 26.
Allcard v Skinner (1887) 36 Ch D 145, [1886–90] All ER Rep 90, CA.
B (adult: refusal of treatment), Re[2002] EWHC 429 (Fam), [2002] 2 FCR 1, [2002] 2 All ER 449, [2002] 1 FLR 1090.
Black v Forsey 1988 SC (HL) 28.
C (Adult Patient) (Access: Jurisdiction), Re[1994] 1 FCR 705, [1993] 1 FLR 940.
City of Westminster Social and Community Services Dept v C[2008] EWCA Civ 198, [2008] 2 FCR 146, [2009] Fam 11, [2009] 2 WLR 185, [2008] 2 FLR 267.
F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 3 WLR 1740, CA.
F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, sub nom Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 FLR 376, HL.
G (an adult) (mental capacity: court’s jurisdiction), Re[2004] EWHC 2222 (Fam), [2004] All ER (D) 33 (Oct).
Harbin v Masterman [1896] 1 Ch 351, [1895–9] All ER Rep 695, CA.
LBL v RYJ [2010] EWHC 2665 (COP), [2011] 1 FLR 1279.
Local Authority v Health Authority (disclosure: restriction on publication)[2003] EWHC 2746 (Fam), [2004] 1 FCR 113, [2004] 1 All ER 480, [2004] Fam 96, [2004] 2 WLR 926, [2004] 1 FLR 541.
MM (an adult), Re, A Local Authority v MM[2007] EWHC 2003 (Fam), [2008] 3 FCR 788, [2009] 1 FLR 443.
PS (incapacitated or vulnerable adult), Re[2007] EWHC 623 (Fam), [2007] 2 FLR 1083.
S v S, W v Official Solicitor [1970] 3 All ER 107, [1972] AC 24, [1970] 3 WLR 366, HL.
SA (vulnerable adult with capacity: marriage), Re[2005] EWHC 2942 (Fam), [2007] 2 FCR 563, [2006] 1 FLR 867.
Shiloh Spinners Ltd v Harding [1973] 1 All ER 90, [1973] AC 691, [1973] 2 WLR 28, HL.
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643, [1985] AC 871, [1985] 2 WLR 480, HL.
SK (an adult) (forced marriage:...
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