What now for deprivations of liberty?
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SPOTLIGHT |
Alex Ruck Keene looks at the status of the High Court's inherent jurisdiction after the Mental Capacity Act 2005 and examines the uncertainty caused by recent rulings.
That very significant vestiges of the High Court’s inherent jurisdiction to grant declaratory and injunctive relief have survived the implementation of the MCA 2005 is now clear.
However, what is very much less clear is precisely: (1) how far the inherent jurisdiction has survived; and (2) how the High Court can or should exercise its powers under the inherent jurisdiction in respect of those who can only be afforded protection by way of its exercise.
Cases decided since the beginning of 2012 have perhaps made the answers less rather than more clear, and this note seeks to draw together some of the threads, as much to provoke discussion as to offer solutions. It concludes with a brief discussion of the prospects for statutory reform in the area in the shape of the draft Care and Support Bill.
On the eve of the MCA 2005
The position as at 30 September 2005 was – relatively – clear:
The position now: the outline
Although the matter was for some considerable time open to question, the decision of the Court of Appeal in A Local Authority v DL & Ors [3] last year has now put beyond doubt that the inherent jurisdiction has survived so to protect from the baleful influence of others vulnerable persons who require such protection but do not fall within the categories of incapacitated persons covered by MCA 2005.
The decision of Parker J in XCC v AA & Anor [4] has also confirmed that a High Court judge, exercising the inherent jurisdiction, has the power to afford protection to incapacitated adults where the remedy sought does not fall within the remedies provided for in MCA 2005.
Finally, it would appear (although such has not been the subject of specific judicial confirmation) that the inherent jurisdiction may also have survived to afford protection to adults unable to take a decision for themselves but who do not suffer from an impairment of or disturbance in the functioning of the mind such as to satisfy the diagnostic criteria set down in s.2(1) MCA 2005.
Each of these three routes to relief are discussed in turn.
Vulnerable adults
The precise scope of the High Court’s powers under the inherent jurisdiction in respect of those who are not considered to lack capacity within the meaning of the MCA 2005 but who require its protection against third parties has still to be finally tested. It is suggested, though, that the following points are uncontroversial:
However, a difficult question which has yet to be answered is whether the High Court in the exercise of its inherent jurisdiction in respect of a vulnerable adult can grant relief which goes further than that aimed against third parties. For instance, could the High Court require that the adult be temporarily removed from the environment in which they are subject to coercion?
In my experience, the Courts have sought vigorously to explore all steps short of this, and have fought shy of granting such relief. In very significant part, it would seem that this is because, whilst it is conceptually easy to formulate effective relief against a third party or parties so as to protect the vulnerable adult, it is much less easy to formulate relief directed against the vulnerable adult in such a way that it does not become dictatorial rather than facilitative. However, it seems to me that we cannot rule out that in a sufficiently extreme case the High Court would take the view that the welfare of the vulnerable adult required their removal where it could be shown all other protective measures had failed and where there was a realistic possibility that the removal would put the adult in a position to make a free choice about the matter in question.
Incapacitated adults
The decision of Parker J in XCC has emphasised a point which (although made by the Court of Appeal early in the life of MCA 2005) has sometimes been overlooked, namely that there remains the possibility that the High Court can grant relief under the inherent jurisdiction in respect of a person who is incapacitated within the meaning of MCA 2005, but where such relief does not lie within the gift of the Court of Protection under the powers granted it by MCA 2005.
The decision of Parker J is also of some importance – and potentially no little difficulty – as regards how the High Court will exercise the inherent jurisdiction in such circumstances.
In XCC, Parker J was concerned with the question of whether she had power under MCA 2005 to make a declaration that a marriage entered into in and recognised as valid in Bangladesh was to be recognised under the law of England and Wales in circumstances where P had lacked the capacity to marry. She held that the repertoire of declarations available to the Court of Protection in MCA 2005 s.15 expressly circumscribed and limited the power of the Court under that Act and did not extend to the making of such a ‘non-recognition declaration.’ She did not therefore have the power, as a Court of Protection judge, to make such a declaration. [8]
Importantly, however, she went on to hold that: “The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne.” [9]
There being a lacuna in the law, in the form of the absence of a power under MCA 2005 to make a non-recognition declaration, Parker J held that she had the jurisdiction – as a High Court judge – to make such a declaration under the inherent jurisdiction.
In reaching this conclusion, Parker J noted that she considered the Court of Appeal decision in City of Westminster v IC and KC and NN [10] to be binding authority for the proposition that she had jurisdiction to make such a declaration under the inherent jurisdiction. I have to confess that I harbour some doubts as to this, because the question of why the Court of Appeal felt it had to proceed under the inherent jurisdiction when making such a declaration had not been considered by that Court. [11] In any event, however, the decision in XCC would seem to put beyond doubt the question of whether it was necessary to use the inherent jurisdiction in such circumstances.
In XCC, Parker J proceeded on the basis that, in considering whether to grant a non-recognition declaration, the Court was not confined to making a decision dictated only by considerations as to best interests, whether those set out in s.4 MCA 2005 or more general welfare considerations. [12] She therefore found that she was entitled to take into account public policy considerations and – specifically – that the marriage had been arranged for the purpose of engineering the entry of P’s spouse into this country so as to allow him to work here. This approach to the question of the exercise of the inherent jurisdiction is undoubtedly novel, and it will be interesting to see whether it is followed outside the very specific context of the case before Parker J.
Adults lacking capacity for a reason outside the MCA 2005
It is important to remember that there are those who lack capacity to take decisions but for a reason which does not satisfy the diagnostic threshold set down in s.2(1) MCA 2005. They are likely to be relatively few in number, but a possible example of such a person (drawn from an unreported case in my experience) might be someone born deaf and deprived of access to signing throughout their childhood. Such a combination can lead to language deprivation, resulting in concrete thinking, limited theory of mind and poor problem solving. Whilst fundamentally impacting upon a person’s ability to make choices, it is not necessarily the case that such a combination of difficulties (flowing from the consequences of physical disability combined with the deleterious circumstances of the individual’s childhood) would satisfy the diagnostic criteria contained in s.2(1) MCA 2005.
This category of person was not discussed by the Court of Appeal in DL. However, the definition given by Munby J in Re SA of the ‘vulnerable’ included those “for some other reason… incapacitated or disabled from giving or expressing a real and genuine consent.” Elaborating upon this, he noted in respect of “other disabling circumstances” that: “[w]hat I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.” It is noteworthy that not all of these circumstances are temporary.
The definition given by Munby J of the ‘vulnerable’ in Re SA was expressly endorsed by the Court of Appeal in DL. [13] I would further suggest that it is wide enough to capture the category under discussion and, indeed, logic would dictate that if they do not fall to be considered by reference to the MCA 2005, they either fall to be protected by reference to the inherent jurisdiction or fall not to be protected at all.
The tenor of both DL and XCC is very firmly that the Courts can be flexible and creative in deploying the inherent jurisdiction, so long as its deployment is not inconsistent with the MCA 2005. Taking this approach would not, I suggest, be incompatible with the MCA 2005, and I would therefore contend that such persons would fall – in an appropriate case – to benefit from the protection of the High Court by the exercise of the inherent jurisdiction even if their inability to make a choice does not arise because they are subject at the material time to the baleful influence of a third party.
In such a case, a very real question would arise as to whether the High Court should exercise its inherent jurisdiction as if it were exercising its powers under ss.15-6 MCA 2005. I would suggest that there is no logical objection in principle to such an approach. Indeed, in such a case, limiting the grant of relief to injunctive relief against third parties would not necessarily serve any purpose, not least as there may well be no third party involved at all.
I would anticipate, though, that in the event that the High Court is considering the exercise of its inherent jurisdiction in such circumstances:
I would further suggest that, if the High Court were to be exercising the inherent jurisdiction in such a case, it should proceed as if it were bound by the principles contained in (in particular) s.4 MCA 2005. In other words, it should not adopt the approach taken by Parker J in XCC above; that approach could in any event be distinguished because Parker J there was not exercising the inherent jurisdiction to take a decision on behalf of the adult before her; rather, she was using it to grant a declaration which lay outside the suite of remedies that were provided for in MCA 2005.
Statutory reform
Responding both to the Law Commission’s report upon Adult Social Care [16] and the report of the Dilnot Commission, [17] the Government is seeking to enact a new Care and Support Act to modernise the entirety of adult social services law. The draft Bill may impact upon the issues under discussion in this paper in two ways.
First, the draft Care and Support Bill proposes [18] the repeal of s.47 National Assistance Act 1948, giving the power to local authorities to remove someone from his or her home in certain circumstances. The power is very rarely (if ever) used now, not least because it would appear extremely difficult to say that it is compatible with Article 5 ECHR, and the Law Commission recommended its repeal. [19]
Second, the draft Care and Support Bill includes a proposed duty on local authorities to make enquiries where there is a safeguarding concern. It states that local authorities “must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken.” [20] As part of the consultation upon the draft Bill, [21] the Department of Health has also consulted upon whether or not there should be a new power to support this duty. The Department of Health suggested that this could be in the form of a power of entry, enabling the local authority to speak to someone with mental capacity who they think could be at risk of abuse and neglect, in order to ascertain that they are making their decisions freely.
In the consultation document, the Department of Health noted that:
The precise scope of the proposed power was left undefined in the consultation document, although the Department of Health suggested a possible procedural route to ensure adequate safeguards were in place, namely applying for a warrant from a Circuit Judge (e.g. a nominated judge of the COP) upon evidence of need for the warrant, and ensuring that there was a process by which the occupiers of the premises understand that they can complain about the way in which a power has been used. The local authority would have to verbally inform the affected persons how they might access that process.
It will be interesting to see whether the version of the Care and Support Bill put to Parliament in due course includes such a power, and whether:
Alexander Ruck Keene is a barrister at 39 Essex Street. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..
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[1] E v Channel Four News & Ors [2005] 2 FLR 913, at paragraph 55
[2] Per Munby J in A Local Authority v (1) MA (2) NA and (3) SA [2005] EWHC 2942, at paragraph 77.
[3] [2012] EWCA Civ 253. A case summary and comment can be found here.
[4] [2012] EWHC 2183 (COP). A case summary and comment can be found here.
[5] DL at paragraphs 66 (per McFarlane LJ) and 76 (per Davis LJ).
[6] See in this regard, in particular, LBL v RYJ and VJ [2010] EWHC 2665 (COP), [2010] COPLR Con Vol 795 and the dicta of Macur J in that case as to the “facilitative, rather than dictatorial, approach of the court” to the exercise of the inherent jurisdiction in the case of vulnerable adults. Her dicta were expressly endorsed by the Court of Appeal in A Local Authority v DL & Ors, at paragraph 67, per McFarlane LJ. For a case comment upon LBL, see here.
[7] DL at para 68 per McFarlane LJ.
[8] Paragraph 48.
[9] Paragraph 54.
[10] [2008] EWCA Civ 198 [2008] 2 FLR 267.
[11] The earlier case is also somewhat curious in that Wall LJ appeared (at paragraphs 54-5) to entertain the possibility that there was no power under MCA 2005 to take steps to prevent an incapacitated adult being removed from the jurisdiction. Thorpe LJ proceeded on the basis that there was such a power, contained in s.17(1)(a) MCA 2005 (paragraph 13). Hallett LJ agreed with both judgments without explaining which analysis she preferred. I would respectfully suggest that the approach of Thorpe LJ is to be preferred, and indeed has been in (unreported) cases in which the Court of Protection has made ‘non-removal’ orders in support of declarations that it is in P’s best interests to remain at an identified location in England and Wales.
[12] Paragraph 56.
[13] DL at paragraph 53, per McFarlane LJ.
[14] In LBL v RYJ and VJ (above, footnote 7), for instance, Macur J noted that “[i]f I were to have found that [RYJ’s] vulnerability was exceptional/greater by reason of her limited intellectual functioning and age, these factors would need to have been considered in reaching my decision concerning capacity. If she is unable to withstand external pressure of 'normal/everyday' degree, whether emotional or physical, it seems to me that it would necessarily inform the answer to the question posed at section 3(1)( c) of the Act” (paragraph 64). In the case discussed at paragraph 16, for instance, a further report produced by a psychiatrist (as opposed to a psychologist) identified a material impairment which satisfied the diagnostic criteria under MCA 2005 s 2(1).
[15] A course of action Macur J deprecated in LBL. This case can be distinguished from the situation under consideration here because it was common ground that RYJ satisfied the diagnostic criteria in s.2(1); we are concerned here where the individual’s material inability to take the decision in question stems from a situation where they do not so satisfy the criteria.
[16] http://lawcommission.justice.gov.uk/publications/1460.htm.
[17] http://www.dilnotcommission.dh.gov.uk/
[18] Clause 37.
[19] Recommendation 42.
[20] Clause 34.
[21] http://www.dh.gov.uk/health/files/2012/07/Consultation-on-New-Safeguarding-Power.pdf. The consultation has now closed; the Department of Health is now considering the consultation responses and the Bill is expected to move forward shortly to pre-legislative scrutiny with a view to a Bill being put before Parliament in May 2013.