Deprivation of liberty: vulnerable adult

The applicant local authority had applied, under the inherent jurisdiction, for protective orders in relation to a capacitous, but apparently vulnerable adult (PR), in circumstances where she had made allegations, particularly against her father, and where she had been planning to return home, following a voluntary stay at a mental health hospital. A judge made three interim orders. The Family Division considered that, on the evidence, it was not surprising that the judge had felt compelled to exercise the inherent jurisdiction to protect PR when the application had first been presented to her. However, the court held that it had not been appropriate for the judge to have made injunctive-type orders against PR herself. The court considered the factors that a local authority should consider before making an application for protective orders, under the court’s inherent jurisdiction, concerning a vulnerable adult. Further, in all the circumstances, and where there was a written agreement (regulating the contact issues between PR and her parents), the court ruled that no further substantive order would be made in respect of PR. 

PR, aged 32, was an intelligent woman who was studying in higher education for a PhD. She was unmarried and without a partner, and had been living with her parents (the parents) and a sibling. In January 2019, PR suffered a significant deterioration of her mental health and was admitted as a voluntary patient to hospital. While on the acute admissions ward, she made a number of allegations about her personal and home life, particularly related to her father. As PR’s mental health improved to a point where she was well enough for discharge from hospital, the applicant local authority’s adult mental health team became concerned that she was planning to return home to live with her parents. A capacity assessment revealed that PR was considered to be capacitous to make decisions about returning home, and about her contact with others (including her parents), but that she was confused and vulnerable. There was a suggestion that parental influence over her was disabling her from making true choices. Despite that assessment, the authority’s social worker concluded that PR needed the court’s protection and that immediate and urgent intervention was justified and proportionate, because PR was threatening to end her life if she did not receive protection. 

On 25 March 2019, the authority, in the exercise of its various duties towards PR (including those under s 42 of the Care Act 2014 (CA 2014) to protect her from abuse or neglect), applied under the inherent jurisdiction of the High Court for protective orders. PR had no knowledge that the application was being made. Over the period of just over four weeks, a judge (the judge) made three interim orders, which included injunctive relief, in respect of PR (see [7], [8] and [10] of the judgment). The case was remitted to the present judge for a hearing.

Whether it had been right for the court to use its inherent jurisdiction, in the circumstances, to make injunctive-type orders in relation to PR. If so, whether it had been right for it to have made injunctive orders against her to prevent her from having contact with her parents. A question arose as to whether the inherent jurisdiction could, or should, have been used to make orders which would have the effect of depriving PR of her liberty (if indeed she had been so deprived). Consideration was given to factors which a local authority should consider before making an application for protective orders, concerning a vulnerable adult, under the court’s inherent jurisdiction. 

Further, the court considered whether any further orders should be made.

It was settled law that the inherent jurisdiction was no longer correctly to be understood as confined to cases where a vulnerable adult was disabled, by mental incapacity, from making his or her own decision about the matter in hand, and cases where an adult, although not mentally incapacitated, was unable to communicate his decision: the jurisdiction extended to a wider class of vulnerable adults (see [15] of the judgment). 

While there would be cases where the medical and/or psychiatric evidence was clear from the outset (enabling the court to make reasonably confident decisions about exercising a statutory jurisdiction, such as the Mental Capacity Act 2005 (MCA 2005), there were many cases where it was not. The approach to an application for an injunction might well differ at different stages of the proceedings and might depend on the state of knowledge available to the judge. There was currently well-recognised access to the inherent jurisdiction for the making of interim orders in cases where there was evidence of vulnerability and a need to protect the vulnerable person (see [38] of the judgment).

Before a local authority made an application under the court’s inherent jurisdiction, which was designed to regulate the conduct of the subject by way of injunction, particularly where mental illness or vulnerability was an issue, it should be able to demonstrate (and support with evidence) that it had appropriately considered whether X: (i)  was likely to understand the purpose of the injunction; (ii) would receive knowledge of the injunction; and (iii) would appreciate the effect of breach of that injunction. If the answer to any of those questions was in the negative, the injunction was likely to be ineffectual and should not be applied for or granted, as no consequences could truly flow from the breach (see [46] of the judgment). 

In the present case, having reviewed the evidence, as it had obtained on 25 March 2019, the present court was not in the least surprised that the judge had felt compelled to exercise the inherent jurisdiction to protect PR when the application had been first presented to her, while time was taken to assess the situation. The alternative statutory remedies, referred to by PR’s counsel, would not have offered PR the level of protection she had needed, and her co-operation with the relevant statutory process(es) had been far from assured). PR had appeared to be a vulnerable person, because of her range of mental health difficulties, and it had been believed that she had been susceptible to coercive or controlling influence at home. The judge had rightly adopted a pragmatic, but nonetheless considered, approach to the situation, appropriately recording in her 25 March order that she felt that the order was both ‘necessary and proportionate’. When judges were presented, as the judge had been, with situations of that urgency and apparent need, there was a strong imperative to oblige the applicant (the authority) with an order. However, it was always important for judges to bear firmly in mind the risk that making such an order might be counter-productive (see [39] of the judgment).

While an order restricting a person from living at a place that they wanted to live (in the present case, PR’s home) could amount to a deprivation of liberty, and potentially could have deprived PR of her liberty, on the evidence, the relevant order(s) had not, in fact, deprived PR of her liberty. When she had moved from hospital to her accommodation on 26 March, the evidence revealed that she had been perfectly acquiescent in doing so and there was no evidence that she had objected. Further, she seemed to have settled reasonably easily. Further, the judge’s approach to the issues, on an interim basis, had been entirely compliant with that laid out in authority (see [40], [41] of the judgment).

It was useful to note the court’s view, in authority, as to the likely maximum length of any interim order . It could be readily inferred that  any interim order in excess of six weeks would be vulnerable to challenge. On the facts of the present case, the order against PM on 25 March 2019 had been repeated in the order of 28 March, and it had not been formally discharged in the order of 29 April. However,  it had not been repeated in that order. Accordingly, PR had been a subject of the order for a little over four weeks, well within the contemplation of the court in authority (see [41] of the judgment).

Once the proceedings concerning PR had been launched, and protective orders had been made (on 25 March 2019), the parties and the court could, and should, have focused on collating the evidence relevant to capacity and/or vulnerability, so that an early decision could be taken about: (i) whether there was a proper basis for continuing the exercise of the jurisdiction beyond the emergency interim; and (ii) if so, whether that should be under MCA 2005 or the inherent jurisdiction. No specific orders had been made in that regard (see [42] of the judgment). 

However, it had not been appropriate to make orders against PR herself on 25 March 2019. While there was precedent in the case law of judges making orders against the vulnerable adults themselves in proceedings under the inherent jurisdiction, it had been illogical for the court to have concluded that PR had needed its protection, yet to have required her, by order, to refrain from doing something which had she had wanted to do, backed with the punitive force of an injunction. To some extent, the appropriateness of that type of provision would always be a question of fact and degree (see [43] of the judgment). 

There was sufficient evidence that PR had been confused in her thinking about her immediate future and/or that she had possibly been coerced and, thus, had been unable to make a decision of her own free-will; she had also been suffering from a possible mental disorder. Accordingly, it would have been difficult for the court to have concluded that any attempt to return to live with her parents in breach of the injunction would be a decision that could have been classified as deliberate (see [44] of the judgment). 

In conclusion, and on the basis that: (i) counsel had submitted a written agreement (regulating the contact issues between PR and her parents) which had been signed by the latter; (ii) the authority had assured the court that it would continue to exercise its powers in respect of PR to comply with its general duty under CA 2014 s 42; and (iii) there was no further purpose to be served by continuing the proceedings, no further substantive order would be made (see [47] of the judgment).

SA (vulnerable adult with capacity: marriage), Re [2006] 1 FLR 867 applied; Wakefield Metropolitan District Council and another v DN and another [2019] All ER (D) 16 (Sep) applied; Fairclough v Manchester Ship Canal Co [1897] 13 TLR 56 considered; Winterwerp v Netherlands (Application 6301/73) [1979] ECHR 6301/73 considered; F, Re [1989] 2 FLR 376 considered; Wookey v Wookey; Re S (a child) (injunction) [1991] 3 All ER 365 considered; T (adult: refusal of treatment), Re [1992] 4 All ER 649 considered; S (hospital patient: court’s jurisdiction), Re [1995] 1 All ER 449 considered; MM, Re; Local Authority X v MM [2009] 1 FLR 443 considered; A Local Authority v DL [2012] All ER (D) 211 (Mar) considered; London Borough of Wandsworth v AMcC and others [2017] All ER (D) 49 (Oct) considered; Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) considered.

Simon Burrows and Fay Collinson (instructed by Cygnet Law) for the authority.

Nageena Khalique QC and Alexander Ruck Keene (instructed by BHP solicitors) for PR. 

Ella Anderson (instructed by Punch Robson) for the father.

Jacqueline Thomas (instructed by Switalskis) for the mother.

Carla Dougan-Bacchus - Barrister.