If the State intervened in an adult’s life for care, support and treatment, without consent, it would be a likely breach of that individual’s human rights (Human Rights Act, Articles 5 and 8, and potentially 3). However, there are circumstances where State intervention may be necessary to protect the individual who is at risk of harm, and as such, there are legal frameworks in place intended to enable State intervention.
The Mental Capacity Act (2005) and the supporting Codes of Practice offer one example where following an assessment that concludes that the person lacks capacity (s2) to consent to that intervention, care, support or treatment can be provided in that person’s best interests (s4) after best interests consultation and consideration of whether there is any less restrictive way of achieving the good intended. The Court of Protection is a forum for disputes about this sort of issue.
There are instances when the provisions of the Mental Capacity Act cannot be applied for legal reasons and the High Court’s inherent jurisdiction can be used where an individual has been assessed to lack capacity. One example is XCC v AA [2012] EWHC 2183 (COP) which used it to declare that the arranged marriage of DD, a young woman with complex learning disabilities, was not recognised in England and Wales.
However, what if circumstances present where it identifies that an adult is at risk, not because of a physical or mental impairment or disability rendering them incapacitated, but because their situation somehow impairs their full cognitive decision-making ability?
The case of A Local Authority V DL, RL and ML (2010) reinforced that the use of inherent jurisdiction remained a viable option where necessary and proportionate interference (para 66 and 76 of A Local Authority v DL & Ors) was required for an adult with capacity who is at risk of harm. The local authority alleged that DL was abusing his parent but they had been assessed to have the capacity to decide to remain in the relationship with him. Initially, the local authority had sought intervention from the Court of Protection under the framework of the Mental Capacity Act and all other statutory pathways had been exhausted. It was argued by the local authority that their decision-making capacity was not impeded by an impairment or disturbances of their mind or brain (S2(1)) but as a result of the control and coercion imposed by DL.
The conclusions from this case, although appealed by DL (DL V A Local Authority & Others (2012) and dismissed, reiterated that the ‘great safety net’ was still in existence. Inherent jurisdiction was captioned to be this following Munby J.’s explanation that “the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent” (Munby J, Re SA; A Local Authority v MA, para 77 [2005] EWHC 2942 (Fam)).
Therefore an application for the use of inherent jurisdiction can be made if the proposed intervention presented is necessary and proportionate (para 66 and 76 of A Local Authority v DL & Ors), to protect a capacitated person at risk by the actions of someone else and, is not required “to simply reverse the outcome under a statutory scheme, which deals with the very situation in issue, on the basis that the court disagrees with the statutory outcome” (JK v A Local Health Board, [2019] EWHC 67 (Fam), para 57).
Determining necessary and proportionate intervention requires consideration of how the applicant has
- sought to explore all other less intrusive measures that may protect the individual’s human rights, and
- why they have been unsuccessful, and
- why the proposed interference is required as a restriction on or deprivation of a person’s freedom is likely to occur, even if only temporarily.
Munby J pointed out in SA 2005 EWHC 2942 (Fam), that:
“… where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasions are based upon personal affection, or duty…powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may …be subtle, insidious, pervasive and powerful”.
DL V The Local Authority & Others (2012) offered insight into the facilitative intention of inherent jurisdiction to “re-establish… the individual’s autonomy of decision making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.” (para 67), Re DL [2012] EWCA Civ 253. There, the Court of Appeal made clear that it considered that the inherent jurisdiction should be used in a “facilitative, rather than dictatorial” way, intended to “re-establish… the individual’s autonomy of decision making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.” – tying it seemingly to where there is a threat to the person’s autonomy from someone else’s influence or presence.
The Mental Capacity Act team at 39 Essex Chambers made this point back in 2020:
“Making declarations or decisions which require [the vulnerable person] to do something are not easily characterised as facilitative, rather than dictatorial. In many cases, further, using the inherent jurisdiction to require someone who has mental capacity to make the relevant decision to do something that they do not wish to do comes very close to, if not actually becomes, impermissibly using the inherent jurisdiction to seek to reverse the outcome under a statutory scheme dealing with the very situation in issue. This is particularly so if there is no third party involved, so there can be no suggestion that the individual in question is under duress or coercion. If it is “truly exceptional” to use the inherent jurisdiction to make orders against the person themselves, in the presence of a risk from a third party, it must be even more exceptional – if it is legitimate at all – to make an order against the person where the sole risk is from the actions (or inactions) of the person themselves.”
For a piece of work on the inherent jurisdiction, publicly available, see here: https://www.39essex.com/sites/default/files/Mental-Capacity-Guidance-Note-Inherent-Jurisdiction-November-2020.pdf
The use of the jurisdiction to underpin an injunction was explored in an early case: A Local Authority V A (2010). In this case, A had been assessed to lack the capacity to decide on the use of contraception. She had already had two children removed at birth, and expressed that she did not want any more children, but appeared to be influenced by the emotional pressure placed upon her by her husband.
Bodey J noted “In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that the decision not to continue taking contraception is not the produce of her own free will” (para 73) continuing
“…I do accept the opinion of Dr K and fully agree with him that she is unable to weigh up the pros and cons of contraception because of the coercive pressure under which she has been placed both intentionally and unconsciously by Mr A. That is not something for which Mr A should feel himself ‘blamed’. It is a product of a number of factors, including their respective personalities and learning disabilities; Mrs A’s dependence on him and fear of rejection; her suggestibility and wish to please him; his lack of insight as to the true extent of her difficulties; his rigid views about their status as husband and wife; his own wish to start a family, which is to be fully respected; and the fact that he has never yet felt included the decision. For these reasons, I am in no doubt that Mrs A presently lacks capacity to take a decision for herself about contraception.”
”The court has a wide inherent jurisdiction to prevent conduct by the dominant party which coerces or unduly influences the vulnerable party from making free decisions. […] In respect of an incapacitated adult, I consider the same should apply, except that the aim of providing him or her with relief from the coercion is first to gain capacity and, if achieved, then to enable him or her to reach a free decision” (para 79).
There are several ways in which inherent jurisdiction can be exercised.
1. If intervention is required against the person posing a risk to the vulnerable person.
AL-JEFFERY V AL-JEFFERY [2016] EWHC 2151 (Fam) provides an example of the use of the inherent jurisdiction where the applicant was without any physical or cognitive impairment or disability but was unable to exercise the right to return to the UK (she had dual British and Saudi citizenship) due to the control of another person. The father was ordered to enable the applicant’s daughter to return to the UK.
2. If intervention is required again the person at risk
Southend-on-Sea Borough Council V Mr Meyers [2019] EWHC 399 (Fam)
In this case, the inherent jurisdiction was used to enable the local authority to place the adult in residential care due to safeguarding concerns about Mr Myers’ son. In this case, it was not any disability and illness which made him ‘vulnerable’ far less lacking in capacity, once he had recovered from the effects of starvation and lack of hydration, but the ‘dysfunctional’ relationship with the son (paras. 33-34) based on promises he had made to his wife to care for him and the son’s own difficulties. Subsequently, an injunction order was placed against the person posing a risk as Mr Myers was supported to return home but the son was not permitted to live at the address.
3. If an intervention may involve a deprivation of liberty
In Southend-on-sea V Myers a temporary deprivation of a capacitated person’s liberty was enabled temporarily, over Xmas, pending a scheduled hearing to consider the alternatives.
Finally, the case of GSST & SLAM V R (2020) provides a great example of exploring if circumstances warrant interference under the framework of the Mental Capacity Act or via a High Court application for the use of the inherent jurisdiction.
R was pregnant and assessed to have capacity to consent to engage, or not, in antenatal care but was “likely to become incapacitous, during the course of labour” (para 3). R had made the previous comment that a Caesarean-section was not something that she would wish to have, but in the absence of an advanced decision to refuse treatment (S24), an anticipatory application to act in R’s best interest under S15(1)(c) was made to ensure legality of potential surgical intervention.
It was identified by Hayden J that “only the inherent jurisdiction could be used in such a situation to authorise any deprivation of liberty to which they would be subject, alongside a declaration under s.15(1)(c) MCA 2005 as to the lawfulness of other steps to be taken in relation to the person at the point when they did not have capacity.”
However readers should note that the law on anticipatory declarations has moved on since 2020 and should be considered carefully by anyone trying to make the choice between the High Court and Court of Protection’s different jurisdictions.