- 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 the year 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:
2.1. through a series of decisions (many of them handed down by Munby J, as he then was), the High Court had created and exercised what was "in substance and reality, a jurisdiction in relation to incompetent adults which [was] for all practical purposes indistinguishable from its well-established parens patriaea or wardship in relation to children;"1
2.2. that jurisdiction could be exercised not merely in respect of the ‘incompetent’ but also in respect of the ‘vulnerable,’ i.e. those who, even if not incapacitated by mental disorder or mental illness, were, or were 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 the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.2
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 & Ors3 earlier this 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 & Anor4 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 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.
- 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:
7.1. the jurisdiction can only be exercised by High Court judges (most usually of the Family Division) sitting in their capacity as such, rather than as judges of the Court of Protection. The Court of Protection only has jurisdiction over those who lack capacity within the meaning of MCA 2005, and the powers exercised over the capacitous but vulnerable are therefore powers of the High Court;
7.2. the test for engaging the inherent jurisdiction of the High Court is whether the proposed intervention is necessary and proportionate;5
7.3. the High Court will in the first instance seek to exercise the inherent jurisdiction so as to facilitate the process of unencumbered decision-making by the adult, rather than taking the decision for or on behalf of the adult;6
7.4. however, the inherent jurisdiction of the High Court is not limited solely to affording a vulnerable adult a temporary ‘safe space’ within which to make a decision free from any alleged source of undue influence.7 The High Court could therefore impose long-term injunctive relief to protect the vulnerable adult (for instance, by making orders prohibiting third parties from taking steps to remove the adult from the jurisdiction).
- 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.
- 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 NN10 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:
19.1. the Court will take very considerable care to reassure itself that the person is not, in fact, materially incapacitated within the meaning of ss.2-3 MCA 2005;14
19.2. the High Court will also be likely to wish to limit itself in the first place to the grant of relief designed – if possible – to improve the adult’s autonomy of decision-making. In other words, the High Court will – and should – be slow to use the inherent jurisdiction in this regard as a simple fall-back in the event that the public authority in question is unable to make good an application founded upon the MCA 2005.15
- 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.
- Responding both to the Law Commission’s report upon Adult Social Care16 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 proposes18 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:
- Protection in law does exist in cases of coercion and undue pressure, including for those with the mental capacity to make their own decisions. Even where there are no formal statutory powers, the High Court has inherent jurisdiction to act.
- This was confirmed by the Court of Appeal in March 2012 in [DL…], where a local authority took legal action to protect a couple in old age from their son, even though the couple said they did not want to take action and at the time both had mental capacity to make that decision. The local authority was able to call upon the High Court’s inherent jurisdiction and the Court issued a detailed injunction to protect the couple.
- However, we do not believe leaving such cases to be resolved on a case-by-case basis using the Court’s inherent jurisdiction is a satisfactory solution. Resorting to the courts in every instance could increase the caseload of courts, result in differing outcomes, be expensive for local authorities and is likely to be extremely disempowering for individuals. If we establish that a proportionate and effective legislative solution could help resolve this issue, it would not be necessary to rely on case law to settle the matter.
- 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:
24.1. the procedural safeguards are fleshed out (for instance, would the application have to be on notice; if not – and one could understand why not – what evidence would be required to justify it being without notice) and/or
24.2. the power is amplified (for instance, by enabling the Police to give effect to a warrant obtained by a local authority). Moreover, a power merely to enter might not actually solve the real issue in many cases, namely the presence of the other individual in the house – could a proper statutory footing be found for requiring that individual to leave for a period of time to enable the local authority to speak to the adult in question?