St Helens Borough Council v PE
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 29 December 2006 |
| Neutral Citation | [2006] EWHC 3460 (Fam) |
| Court | Family Division |
| Date | 29 December 2006 |
| Docket Number | Case No: FD05P01780 |
[2006] EWHC 3460 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
Case No: FD05P01780
Ms Jenni Richards (instructed by Peter Blackburn, Assistant Chief Executive (Legal & Administrative Services)) for the claimant
Mr David Wolfe (instructed by Leigh Day & Co) for the first defendant
Mr Paul Bowen (instructed by Miles and Partners) for the second defendant
Mr Stephen Knafler (instructed by Hempsons) for the interested party
Hearing date: 11 December 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private but the judge hereby gives leave for it to be reported.
On 1 June 2005 I gave judgment in 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. Those were proceedings (FD05P00944) relating to a woman of 32 called Pamela. I need not repeat the description of Pamela's difficulties which I set out in my judgment, but as will be recalled Pamela lives in her own house, supported by a large round-the-clock care support team. Her package of care was, and is, more than usually complex.
At that time, the local authority, St Helens Borough Council, had indicated that it was proposing to commence proceedings under the inherent jurisdiction with a view to better regulating Pamela's care and making "firm and stable plans" for her future. In the event the proceedings (FD05P01780) were begun by a Part 8 claim issued on 5 September 2005. The proceedings proved to be somewhat protracted and eventually came on for trial before me on 11 December 2006. In the event, and in circumstances in which everyone involved is to be congratulated for their sustained efforts and ultimate success in achieving the best for Pamela, I was invited to approve the terms of an order to which everyone was agreed.
The precise terms of the order are of importance only to the parties and I propose to say very little about them. I was satisfied, in the light of all the evidence, and I granted a declaration to the effect, that Pamela lacks the capacity to make decisions about the organization, management and structure of her care package. The order sets out, in very considerable detail, the framework within which, and the principles by reference to which, her care package is to be organised and implemented.
The form of the order does, however, raise one important point of principle on which it may be convenient for me to give a short judgment.
In the order as I finally approved it there are many paragraphs taking the form "it is declared that it is in Pamela's best interests" that somebody do something or that something be done (or not done). There are other paragraphs taking the form "it is declared that it is not in Pamela's best interests" that somebody do something or that something be done.
One example, and it is in a sense the key provision in the order, is a declaration that:
"it is in [Pamela]'s best interests for the delivery of care to her to be organized and structured in the manner set out in the First Schedule attached to this Order."
I need not refer in any detail to that Schedule, save to observe that paragraph 1 provides that:
"A single experienced organisation…should be commissioned by the [local authority] to provide [Pamela]'s care. [Pamela] will be able to participate appropriately in the process of selecting and appointing that organisation."
In the course of the discussions which took place between the parties during the drafting of the order there was some debate as to whether an order in this form was appropriate. In particular, it was suggested that what I will call a bare declaration of "best interests" is inappropriate and that the more appropriate form of order was one declaring, for example, that "it is lawful, being in [Pamela's] best interests, for the delivery of care to her to be organized and structured [etc]" (emphasis added).
The Official Solicitor was of the view that the additional words were unnecessary and inappropriate. I agreed – hence the form of the order which I eventually made.
It may assist if I explain briefly why, in my judgment, the Official Solicitor was correct and why it is no longer necessary on every occasion, even if on many occasions it will still be appropriate, to adopt the conventional formula that something is "lawful as being X's best interests" or "not lawful as not being in X's best interests."
I need not re-trace, yet again, the history and development of the inherent declaratory jurisdiction in relation to adults since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. It suffices to refer to the account in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [38]-[42].
As is well known the inherent jurisdiction was first exercised in relation to issues of surgical, medical and nursing treatment, a context where the doctrine of necessity as explained in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 is of crucial significance. In that kind of case, what the Family Division is doing when exercising the inherent declaratory jurisdiction in relation to an incompetent adult is to declare that something is lawful – lawful not because the court has given its consent but lawful, notwithstanding the absence of any valid consent, because and by virtue of the operation of the doctrine of necessity: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [97].
Now since the whole point of the doctrine of necessity is that it renders lawful that which, absent consent, would otherwise be unlawful, and since, under the doctrine of necessity, it is the patient's best interests that determine what is or is not lawful (see In re S (Adult Patient: Sterilisation) [2001] Fam 15), the proper form of declaration is that which is now so familiar: a declaration, for example, that "the proposed operation, being in the existing circumstances in X's best interests, can lawfully be performed notwithstanding X's inability to consent to it." And similar forms of declaration may well be appropriate in other contexts where the doctrine of necessity is in play, for example, in relation to questions of where an incapacitated adult should live, who he should see or the circumstances of such contact: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [99].
But matters have now moved on very significantly. As I said in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [37]:
"It is now clear…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."
I went on (at paras [38] and [43]) to comment that:
"The simple fact is that the jurisdiction has developed very significantly since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1…This process continues and...
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