Re L (Vulnerable Adults with Capacity: Court's Jurisdiction) (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Davis,Lord Justice Maurice Kay |
| Judgment Date | 28 March 2012 |
| Neutral Citation | [2012] EWCA Civ 253 |
| Docket Number | Case No: B4/2011/1277 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2012 |
[2012] EWCA Civ 253
Lord Justice Maurice Kay
Lord Justice Mcfarlane
and
Lord Justice Davis
Case No: B4/2011/1277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mrs Justice Theis
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Nathalie Lieven QC and Mr Alex Durance (instructed by Ison Harrison Solicitors) for the Appellant
Mr Paul Bowen and Miss Alison Pickup (instructed by Local Authority Legal Services) for the Respondent
Hearing dates : 16 January 2012
The focus of this appeal is a single point of law. The point relates to the extent to which the inherent jurisdiction of the High Court may be deployed following the implementation of the Mental Capacity Act 2005 for the protection of adults who are perceived to be vulnerable. The issue does not concern those cases that fall within the MCA 2005 and which proceed in the Court of Protection. The question for consideration is whether, despite the extensive territory now occupied by the MCA 2005, a jurisdictional hinterland exists outside its borders to deal with cases of 'vulnerable adults' who fall outside that Act and which are determined under the inherent jurisdiction.
It is common ground that the High Court exercised the inherent jurisdiction in relation to adults prior to the commencement of the MCA 2005 in 2007. The appellant argues that the MCA 2005 and its supporting Code of Practice represent comprehensive statutory provision for the protection of adults and that Parliament intended that it would be impermissible for the High Court to exercise any jurisdiction in relation to the care and protection of adults who fall outside the provisions of the 2005 Act.
The point is of real importance in the present case where, at the start of the proceedings, the two elderly adults concerned plainly had mental capacity to make decisions for themselves. The MCA 2005 s 2(1) limits the compass of that legislation to a person who lacks capacity in relation to a matter because, at the material time, "he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". In the present case the Local Authority, who seek to invoke the inherent jurisdiction for the protection of these two elderly people, claim that the couple lack capacity as a result of undue influence and duress brought to bear upon them by their son, DL.
This point of law fell to be determined as a preliminary issue in the proceedings and, on 19 April 2011, Mrs Justice Theis gave judgment to the effect that the High Court's inherent jurisdiction to protect adults had survived the passing of the 2005 Act and that the court therefore had jurisdiction to make orders with respect to DL's parents in this case notwithstanding that one or both of them continued to retain capacity under the terms of the MCA 2005.
By the time the matter fell to be determined, sadly GRL's mental wellbeing had deteriorated to the extent that it was agreed that he lacked capacity within the meaning of MCA 2005 and his case therefore proceeds within the statutory scheme in the Court of Protection before Theis J sitting as a judge of that court.
The substantive order made by Theis J included a wide-ranging interim injunction order made under the inherent jurisdiction (with respect to ML) and under the MCA 2005, s 48 (with respect to GRL) restraining DL's behaviour towards his parents, care staff and other professionals.
On 29 June 2011 Lord Justice Hughes granted DL permission to appeal to this court. The appeal, which we have now heard, was litigated between DL and the Local Authority, with no contribution on behalf of DL's parents.
At the conclusion of the oral hearing we announced our decision which was that the argument on behalf of DL had failed, the conclusion reached by Mrs Justice Theis was correct, the inherent jurisdiction for the protection of adults survived the passing of the MCA 2005 and the court therefore had jurisdiction to move forward and consider whether the facts in this case justified its deployment for the protection of DL's parents, ML and/or GRL. As a result, and in order to allow the proceedings to progress, we announced our intention to dismiss the appeal. The purpose of this judgment is therefore to spell out the reasoning behind our decision.
The assumed facts
For the purposes of the determination of the legal point the parties have helpfully agreed a set of "assumed facts" which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.
"Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves. Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.
The local authority is concerned about DL's alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL's behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL's name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.
The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.
The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL's behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife's wishes.
Interim injunctions were made by the President, Wall LJ, on 12 October 2010, ex parte and without notice, restraining the First Defendant from:
(i) assaulting or threatening to assault GRL or ML;
(ii) preventing GRL or ML from having contact with friends and family members;
(iii) seeking to persuade or coerce GRL into transferring ownership of the current family home;
(iv) seeking to persuade or coerce ML into moving into a care home or nursing home;
(v) engaging in behaviour towards GRL or ML that is otherwise degrading or coercive, including (but not limited to): stipulating which rooms in the house GRL or ML can use; preventing GRL or ML from using household appliances, including the washing-machine; 'punishing' GRL or ML, for example, by making GRL write 'lines'; shouting or otherwise behaving in an aggressive or intimidating manner towards them.
(vi) giving orders to care staff;
(vii) interfering in the provision of care and support to ML;
(viii) refusing access to health and social care professionals;
(ix) behaving in an aggressive and/or confrontational manner to care staff and care managers.
The President also made a Harbin v Masterman order inviting the Official Solicitor to investigate ML and GRL's true wishes and to ascertain whether they are operating under the influence of DL in relation to the contact that they have with him.
The Official Solicitor appointed an Independent...
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