Summary: A local authority which was concerned that a vulnerable man in his forties, with Down’s Syndrome and other health issues, was suffering emotional and physical harm, applied for an order authorising his removal from his mother’s home to a place of safety.
LD lived alone with his elderly mother (RD) who was in her eighties. LD had Down’s Syndrome, a severe learning disability, autism traits and a heart defect. He could only communicate through body language and required 24-hour care. Neither RD or LD were believed to have had the COVID-19 vaccination and through the pandemic RD isolated herself and LD at home. Despite the ceasing of lockdown restrictions RD continued to isolate LD at home confining him to an upstairs bedroom and bathroom. RD would not allow LD downstairs for fear he would get excited and want to go out. RD would not let anyone into her home for fear of the risk they might pose to her son. Carers were not allowed in and were given a shopping list at the door.
LD required cardiology reviews but had not been seen since 2018. A safeguarding referral was made by a nurse within the cardiac team at the local hospital in April 2023 when RD advised her that she would no longer be bringing LD to the hospital to attend the cardiology clinic. Social workers and a GP attempted to visit LD at home, but RD refused to let them in. RD was believed to be unable to meet LD’s care needs.
The application was therefore by the local authority due to grave fears that LD was suffering emotional and physical harm and that his health and welfare were being seriously impacted. Ther local authority sought an order authorising LD’s removal to a place of safety where his capacity, and health, welfare and caring needs could be assessed. The application was initially made under the inherent jurisdiction of the Hight Court on the footing that the evidence was not sufficient to meet the standards of s.48 of the Mental Capacity Act but in her witness statement the senior social worker said that she had not been able to obtain a Mental Capacity Assessment in regard to LD’s ability to make decisions as to his residence and Care and Support Needs. This was because RD was unwilling to let anyone into the home to meet with LD and continued to prevent access to him.
The senior social worker explained that from discussions with LD’s previous support workers and from reviewing his records, her professional opinion was that it was highly likely that LD lacked capacity to make decisions in these domains. The applicant’s representative stated: “As it has been impossible to assess LD in recent times (including as to his mental capacity), the applicant considers the most appropriate application to make at this juncture, is for Court authorisation to move LD pursuant to the Court’s inherent jurisdiction to safeguard vulnerable adults whose ability to make decisions has been overborne by his mother. It may be that following assessment LD if found to lack capacity in the relevant areas, in which case transfer to the Court of Protection for any necessary further orders of the case is likely to be indicated.”
The assumption on the part of the council was that there had to have been a recent assessment of LD’s mental capacity before s.48 could be invoked.
The Mental Capacity Act 2005 s.48 provided that the court could, pending the determination of an application to it in relation to a person (P), make an interim order or give interim directions in respect of any matter if:
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P’s best interests to make the order, or give the directions, without delay.
Mostyn J stated he “largely agreed with the analysis” in DP v Hillingdon LBC [2020] EWCOP 45, although he disagreed with the statement that s.48 was a “permissive provision in the context of an emergency jurisdiction which could only result in an order being made where it was identifiably in P’s best interests”. There was nothing in s.48 that suggested that it was reserved solely for emergency situations. Neither did the court need to be satisfied that it was “identifiably” (which Mostyn J said he took to mean ‘strongly’) in P’s best interests for an interim order to be made.
Mostyn J also disagreed with the statement in DP v Hillingdon at 62. sub-para (iv) that the question was whether the evidence established reasonable grounds to believe that P “may” lack capacity. In order for there to be “reason to believe” that P lacked capacity on a relevant matter, in terms of s.48(a), the requisite degree of likelihood was not high and would be approximately the same as that for obtaining an interim injunction or permission to appeal, ie. a real prospect of success.
Mostyn J observed that while the Court of Appeal is clear that the requisite degree of likelihood does not have to be more than 50%, it does not tell us, at any rate not numerically, what that minimum degree of likelihood is. He said this: “In my judgment, the requisite degree of likelihood that will satisfy the criterion “has reason to believe” is not high and will be approximately the same as that for obtaining an interim (non-freezing) injunction or permission to appeal ie. “a real prospect of success”. I would say that the level is not less than 25%, or odds of 3/1” that a formal capacity assessment would find LD to be incapacitous. The senior social worker’s witness statement stated that, in her opinion, it was “highly likely” that LD lacked capacity to make decisions in relation to his health and welfare. She was qualified to give expert evidence as to mental capacity and so her opinion was admissible under the Civil Evidence Act 1972 s.3(1). That opinion, taken with the other material in her witness statement, gave the court reason to believe that LD lacked capacity to make decisions in relation to his health and welfare.
The evidence was such as to meet the s.48(a) condition. The s.48(b) condition was unquestionably satisfied. The matter in question, namely the removal of LD for assessment, was plainly within the jurisdiction of the Court of Protection, which had power to make coercive orders by way of injunction to that end against RD, G (Court of Protection: Injunction), Re [2022] EWCA Civ 1312 applied. Whether the s.48(c) condition would be satisfied by making the order sought remained undecided and would be the subject of a separate judgment.
However, in reaching its conclusions the court considered that the question that needed addressing was whether there was any room to make an interim order under the inherent jurisdiction which held the ring pending a full hearing, but which could have the effect of depriving a potentially or clearly capacitous adult, who does not suffer from a mental disorder, of his liberty [if that was the case on other facts].
Mostyn J said “if the evidence clearly shows that the person who is being sought to be protected is obviously clearly capacitous, like Mr Mazhar (see Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377) and clearly does not suffer from a mental disorder as defined by the Mental Health Act 1983, then I just cannot see how he could ever be described as being of “unsound mind” so as to justify his deprivation of liberty under Article 5.”
Mostyn J concluded by saying “I accept that this may leave a gap in the law in that there may be out there fully capacitous, yet extremely vulnerable, adults being ruthlessly victimised and exploited by members of their family, or their carers, who the State cannot protect by forcibly removing them from their homes. That is a gap which, in my opinion, should be filled not by judicial legislation but by parliamentary legislation.”