Keeping the safety net

Richard Mumford reviews a recent Court of Appeal ruling on the impact of the Mental Capacity Act 2005 on the High Court's inherent jurisdiction in relation to vulnerable if 'capacitous' adults.

Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment DL v A Local Authority & Others [2012] EWCA Civ 253 handed down on 28 March 2012, the Court of Appeal confirmed that it does. 

DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.

Importantly, it was assumed that both elderly parents did have capacity within the meaning of the MCA 2005 in that neither was subject to “an impairment of, or a disturbance in the functioning of, the mind or brain”. The interference with the process of decision making arose rather from undue influence and duress inflicted by their son. The local authority, concerned by DL’s conduct, nonetheless applied to the court for injunctions restraining DL’s conduct towards his parents.

Jurisdiction to interfere

The interim injunctions, granted by Lord Justice Wall (President of the Family Division) and affirmed by Mrs Justice Theis, were appealed by DL on the ground that since the passing of the MCA 2005, the court no longer had jurisdiction to interfere in the affairs of adults who had capacity within the meaning of that Act to make their own decisions, vulnerable or not. In the alternative, in so far as the inherent jurisdiction survived the introduction of the MCA 2005 and its accompanying Code of Practice, it was limited to providing a short period for the individual concerned to be allowed to make his or her own decision.

In rejecting DL’s argument and finding that the parens patriae (“parent of the nation”) jurisdiction of the High Court was maintained in relation to vulnerable if “capacitous” adults, the Court of Appeal referred at length to the extensive discussion of this area of the law contained in the judgment of Munby J in Re: SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam). That decision affirmed the existence of the “great safety net” of the inherent jurisdiction (a term coined by Lord Donaldson in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1) in relation to all vulnerable adults.

Munby J’s conclusion (at paragraph 79 of SA) was that: “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.”

In rejecting DL’s appeal, the Court of Appeal dismissed the argument that SA was an isolated and impermissible extension of the court’s authority – an argument difficult to sustain in the face of the exhaustive analysis of authority performed by Munby J, whose conclusions were given “unreserved endorsement”.

The Court of Appeal also rejected arguments that Parliament in enacting the MCA 2005 must have intended an exhaustive code for the protection of adults, dependent on a criterion of incapacity; the Court held that, on the contrary, the fact that Parliament chose not to abolish the inherent jurisdiction for the protection of all vulnerable adults which pre-existed the Act was a factor indicating that it was intended to be left untouched.

Regarding the arguments in relation to Article 8 of the European Convention on Human Rights (ECHR), which were accepted to be somewhat neutral between the parties, it was observed (at paragraph 66) that: “In terms of the ECHR, the use of the inherent jurisdiction in this context is compatible with Article 8 in just the same manner as the MCA 2005 is compatible. Any interference with the right to respect for an individual’s private or family life is justified to protect his health and or to protect his right to enjoy his Article 8 rights as he may choose without the undue influence (or other adverse intervention) of a third party. Any orders made by the court in a particular case must be only those which are necessary and proportionate to the facts of that case, again in like manner to the approach under the MCA 2005.”

In dismissing the spectre of the use of the inherent jurisdiction by local authorities to pursue a “Big Brother” agenda, the Court commented (at paragraph 76) that: “It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are.”

No doubt many citizens, lawyers in particular, will be reassured by that observation.

Richard Mumford is a barrister at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights Blog.