The extent of the inherent jurisdiction

Christine Cooper reports on an unusual inherent jurisdiction case that recently went before a High Court judge.

I appeared for a local authority before Mr Justice Cobb recently on an application for orders under the inherent jurisdiction. The local authority sought the orders to enable it to provide care for a vulnerable adult who had last been assessed as having the capacity to make his own decisions.

This was an interesting case for two reasons.

• There was no third party said to be oppressing the autonomous decision-making process. In this case, it was the combination of physical and mental health issues together with chronic alcohol abuse that called for the protection of the court.
• There was no reliable evidence that the person lacked capacity as he had refused to co-operate with any further assessments.

The court found that a review of the previous history indicated his capacity may have fluctuated in the past and the recent refusal to accept care for the last three weeks suggested (but did not prove) that his mental functioning may have deteriorated. Taken in the round, this was sufficient to enable interim declarations and orders to be made under the Mental Capacity Act 2005.

Importantly, the court held that the inherent jurisdiction of the High Court can be used to protect a vulnerable adult through the use of coercive measures that restrict the person’s liberty. But where there is reason to believe that person may lack capacity, an order under the Mental Capacity Act is to be preferred.

The court also expressed some doubt about whether an order could be made under the inherent jurisdiction that went further and deprived a person of his liberty but it did not decide that issue.

Christine Cooper is a barrister at Field Court Chambers.