A Local Authority v LD

25 May 2023. MOSTYN J handed down the following judgment.

1 In this judgment a reference to:

(i) “The inherent jurisdiction” is to the inherent power of the High Court, devolved to it from the Crown following the constitutional settlement enacted by the Act of Settlement 1701 (12 & 13 Will 3, c 2), to protect vulnerable, but nevertheless capacitous, adults.

(ii) “Section 48” is to section 48 of the Mental Capacity Act 2005.

(iii) “The section 48(a) condition” is to the requirement within section 48 that the court has reason to believe that the protected party lacks capacity.

(iv) “The applicant” is to the Local Authority.

(v) “OS” is to the Official Solicitor.

(vi) “LD” is to the protected party, the first respondent, represented by the OS as his litigation friend.

(vii) “RD” is to his mother, the second respondent.

2 This judgment deals with two matters which have arisen in this complex and sensitive case which is proceeding under section 48 and/or the inherent jurisdiction.

3 The two issues are:

(i) the exact meaning and scope of the section 48(a) condition, and

(ii) if section 48 does not apply, the extent of the power under the inherent jurisdiction to make an order which has the effect of depriving LD of his liberty.

4 LD is in his forties. He has Down’s Syndrome, a severe learning disability, autism traits and a diagnosis of atrio-ventricular septal heart defect which can negatively impact on the ability of his blood to circulate oxygen in his body. He is unable to communicate verbally and communicates by body language, such as grabbing techniques, hand signals and noises.

5 He lives alone with his mother RD, who is in her eighties. He has scarcely been seen by anyone in the last three years. He requires cardiology review, but has not been seen for cardiology assessment since 2018. He has 24-hour care needs. He requires full support:

• with all personal care, including showering and bathing;

• with eating, preparation and feeding;

• to mobilise and, if going out (which he has not, for a long time), use of a wheelchair;

• to take medication;

• with toileting, as he is doubly incontinent;

• to attend health care appointments and to access the community and social opportunities;

• with dressing; and

• with communication.

He is very seriously impaired.

6 RD has in the past generally engaged with social care and health care professionals, mainly through telephone conversations. She has previously accepted some limited support, in the form of day care services. From 2015 LD attended a private day care facility at two day centres for two days per week; however he had sporadic attendance, sometimes having weeks or months off, especially in the winter period.

7 The Covid 19 pandemic led to RD isolating herself and LD, which stance has persisted despite the lifting of restrictions. RD no longer lets anyone into her home. Save for a heating engineer who visited to repair the boiler on 20 April 2023, and who briefly saw LD sitting in a chair, LD has not been seen since 2020.

8 Neither RD nor LD are believed to have had a Covid-19 vaccination.

9 During the pandemic they received support from carers in the form of two visits per week and in the past six months they have received support from a care agency. Since the pandemic RD will only allow carers to meet with her on the doorstep of her home and collect a shopping list, do the shopping and then return to drop off the supplies they have bought for her. She will not allow the carers to see LD, who is kept upstairs at all times confined to his bedroom and bathroom. It is believed that LD sleeps in a chair with no daily/night time routine. RD has reported that she has not taken him downstairs or to their garden as she is concerned that “he will get excited and want to go outside”.

10 A safeguarding referral was made on 4 April 2023 by SR...