The Mental Capacity Act 2005 ("Mental Capacity Act") and its Code of Practice provide a comprehensive statutory code for dealing with individuals who lack mental capacity. The Court of Protection in its present form was established as an independent court of record in relation to persons who lack capacity and came into operation upon the coming into force of the Mental Capacity Act. However, section 2(1) of the Act limits the ambit of the act to individuals who lack capacity in relation to a particular matter where, at the material time, they are unable to make a decision for themselves "because of an impairment of, or disturbance in the function of the mind or brain". Since the enactment of the legislation it has become clear that the Mental Capacity Act definition fails to capture a significant sector of the population who may retain mental capacity, but still be vulnerable to exploitation or even significant harm by others because of prevailing circumstances. In many case individuals who are deemed to be "vulnerable" in this context will be elderly and the term "elder abuse" is often used by practitioners to describe a particular situation which has arisen, however, younger adults may also be at risk.

Background

Before the Mental Capacity Act came into force protection was afforded by the Court's inherent jurisdiction which had developed so that it could be invoked to protect both those individuals who lacked mental capacity and also those who were (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.

In many ways the inherent jurisdiction or parens patriae ("Parent of the Nation") jurisdiction can be seen as similar to the wardship jurisdiction exercised in relation to children in Family Law cases. The Court can use its inherent jurisdiction to intervene to protect vulnerable adults by making freezing orders to prevent money or property being disposed of. The Court's powers can also be used to set aside transfers procured by undue influence or coercion or where there is evidence that a vulnerable individual has, for some other reason, been incapacitated or disabled from giving real and genuine consent.

The case at first instance

Mr and Mrs L were an elderly couple, aged 85 and 90 respectively. They lived with their adult son, DL, in a house owned by Mr L. Mrs L was physically disabled and was visited twice daily by health and social care professionals. At the time the proceedings commenced neither Mr or Mrs L lacked capacity within the meaning of the Mental Capacity Act. However, by the time the case came to be determined Mr L had been assessed as lacking the capacity to make his own decisions and hence his needs fell within the auspices of the Mental Capacity Act and thus the Court of Protection. The local authority brought the initial proceedings to protect Mr and Mrs L from their son, whose behaviour towards his parents included physical and verbal abuse, controlling their movements within the house and their access to visitors, including his Mother's carers. DL was also alleged to have sought to coerce his Father into transferring the house into his ownership.

The local authority obtained ex parte and without notice injunctions against DL from Sir Nicholas Wall (President of the Family Division) who also made an order inviting the Official Solicitor to investigate the parents' wishes and to ascertain whether they were operating under DL's influence. The Official Solicitor concluded that Mr and Mrs L were subject to the undue influence of their son to the extent that their capacity was being compromised. There was then a trial on the preliminary issue as to whether the Court had jurisdiction to make orders on behalf of Mr and Mrs L. At that hearing Mrs Justice Theis granted interim injunctions under section 48 Mental Capacity Act (for Mr L) and under the Court's inherent jurisdiction (for Mrs L) restraining their son's abusive behaviour towards them. DL appealed on the basis that the inherent jurisdiction of the Court had not survived the enactment of the Mental CapacityAct.

As the Judges in the Court of Appeal noted, Mrs Justice Theis conducted an extensive review of Munby J's comprehensive judgment in Re: SA (vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam) and a number other first instance authorities before reaching her decision.

In Re SA a vulnerable 18 year old woman had already been protected by the Court of Protection from an unsuitable arranged marriage while she was a minor and the question for the Court was whether it had jurisdiction to continue to protect her from the risk of an unsuitable arranged marriage. It was common ground that the young woman had sufficient understanding of the concept of marriage and that she did not lack the capacity to marry, but because of her circumstances (she was profoundly deaf, was unable to communicate orally, had a profound bilateral sensory neural loss and had limited vision) she was viewed as vulnerable and thus there was a question as to whether the Court could make orders preventing her family from removing her from the jurisdiction or cause her to be married without first ascertaining that she freely consented to the marriage.

Munby J said that the Court excercised a "jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children." He traced the development of the inherent jurisdiction following its "rediscovery" by the House of Lords in In re F (Mental patient: Sterilisation) [1990] 2AC 1. In that case F lacked mental capacity to consent to a medical sterilisation and the Court decided that it would be in her best interests for doctors to perform that procedure. In the re F decision Lord Donaldson of Lymington MR affirmed the use of the common law as a "great safety net" for vulnerable adults to fill in the gaps in the law where that was necessary and in Re SA Munby J concluded that "the inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some 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. The cause may be, but is not for this purpose limited to, mental disorder or illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nontheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors".

Munby J was very careful not to give a precise definition of "vulnerable adult" and emphasised that the inherent jurisdiction is "not confined to those who are vulnerable adults… nor is a vulnerable adult amenable as such to the jurisdiction". However, he did recognise that it was "likely to be easier to persuade the Court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable".

Mrs Justice Theis considered that the inherent jurisdiction did survive the enactment of the Mental Capacity Act and its Code of Practice. Therefore, amongst other things, she concluded:

  • It was accepted that prior to the implemention of the Mental Capacity Act the inherent jurisdiction extended to cases that went beyond issues relating to mental capacity.
  • It was accepted that the essence of the inherent jurisdiction was to be flexible and to be able to respond to social needs.
  • The Parliamentary consideration prior to the Mental Capacity Act being passed did not expressly seek to exclude the Court's inherent jurisdiction.
  • The continued existence of the inherent jurisdiction following the implementation of the Mental Capacity Act has been restated in a number of decisions.
  • The mere existence of the inherent jurisdiction does not mean it will always be exercised. Each case will have to be considered on its own facts and a careful balance undertaken by the court of the competing considerations as to whether declarations or other orders should be made.

The Court of Appeal hearing

In order to assist the Court in determining the point of law the case proceeded on the basis of a set of "assumed facts" which had formed the basis of the case before Mrs Justice Theis (albeit these facts were not agreed by the appellant, DL).

Counsel for DL mustered four principal arguments:

  1. Prior to the introduction of the Mental CapacityAct the only authority that the inherent jurisdiction extended to adults who maintained mental capacity is Re SA. Re SA was an isolated decision not supported by any previous authority and Mrs Justice Theis accorded it too much weight in reaching her decision.
  2. The Mental Capacity Act was clearly intended to provide a comprehensive statutory code for those who lacked capacity.
  3. If a case does not fall within the provisions of the Mental Capacity Act then there is no jurisdiction for the Court to make orders controlling the lives of those who do not lack capacity within the meaning of the Mental Capacity Act.
  4. If there is any element of inherent jurisdiction remaining in this field it is limited to providing a short period for the individual to be allowed to make his/her own decision and, if appropriate, the provision of advice.

In giving the lead judgment in the Court of Appeal McFarlane LJ said first, that he did not accept that the jurisdiction described by Mrs Justice Theis was (as promulgated by DL) so extensive and all-encompassing as to permit the Court to override the decision of any competent adult and so ignore their rights to make autonomous decisions. Instead, he favoured the analysis of Counsel for the Local Authority who relied heavily on the conclusions of Munby J in Re SA in his submission that the inherent jurisdiction is targeted solely at adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the Mental Capacity Act.

Secondly, Mcfarlane LJ noted that the Act makes no express provision limiting or extinguishing the use of the inherent jurisdiction and said that the fact that Parliament chose not to abolish it indicated an intention to leave the jurisdiction intact to continue to develop under common law as it had done prior to 2005.

Thirdly, the argument that the Mental Capacity Act was intended to be a comprehensive statutory code covering all matters relating to an adult's capacity to make decisions was unsustainable because the Act is expressly limited to "people who lack capacity" for the purposes of the Act.

Finally, Mcfarlane LJ was clear that use of the inherent jurisdiction in this context is compatible with Article 8 of the European Convention on Human Rights and did not remove an individual's autonomy of decision-making. Instead, invoking the inherent jurisdiction allowed individuals "space" to enable them to make decisions for themselves free from any external influence. Mcfarlane LJ emphasised that any orders made by the court in a particular case must only be those which are necessary and proportionate to the facts of the case, similar to the approach to be adopted under the Mental Capacity Act and the approach of the Court should be facilitative rather than dictatorial.

Conclusions

The Law Commission Report on Mental Incapacity in 1995 (the precursor to the Mental Capacity Act) suggested the need for a comprehensive legislative framework to protect vulnerable adults (including individuals who retained mental capacity) against serious harm or exploitation.

Now the Court of Appeal decision in DL v A Local Authoity has affirmed the existence of the "safety net" of the Court's inherent jurisdiction for all those who find themselves coerced or constrained by prevailing circumstances in making decisions, but, because they retain capacity do not fall within the ambit of the Mental Capacity Act or the Court of Protection.

The acknowledgement of the continued existence of the inherent jurisdiction is significant, not only for the elderly who may fall prey to undue influence or threatening behaviour from family members or professionals, but also for other vulnerable individuals who fall outside the scope of the protection offered by the Mental Capacity Act. It is clear that the inherent jurisdiction does not permit the Court to make a "best interests" assessment on behalf of the vulnerable person or to impose its decision as to best interests on the individual. Instead the Court will grant relief on a facilitative basis in order to create "space" for the vulnerable individual to put themselves in a position without external influence so that they are able to make a free and informed decision.

The 2011 Law Commission Report on Adult Social Care recommended that the concept of "vulnerable adult" should be substituted with the wider concept of an "adult at risk" which would emphasise the behaviour of the abusive individual rather than the vulnerability of the coerced or constrained adult and centre the focus on the objective circumstances. The continued existence of the inherent jurisdiction should fit well into the continuing development of wider framework to safeguard those at risk without taking away their autonomy or Article 8 rights under the European Convention of Human Rights.

First published in the Trusts & Estates Law & Tax Journal July/August 2013.