High Court - Inherent jurisdiction - Circumstances in which exercisable

A Local Authority and others v DL: Court of Appeal, Civil Division (Lord Justices Maurice Kay, McFarlane and Davis): 28 March 2012

M and G were an elderly married couple. Their son, the defendant (D), lived with them at the home which was owned by G. The claimant local authority was concerned about D’s conduct towards his parents, which, it contended, had been aggressive and had resulted in physical violence. It further alleged that D had controlled who could visit his parents and the terms upon which they might visit, including visits by health and social care professionals who provided care and support to M.

It had also received reports that D had tried to coerce G into signing the house over to him and had pressurised his parents to have M moved into a care home against her wishes. The local authority issued proceedings to protect M and G. It acknowledged that, on the information that had been available at that time, neither M nor G lacked the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain.

Various interim injunctions were granted on an ex parte, without notice, basis that restrained D from engaging in certain behaviours. The court also invited the Official Solicitor to investigate M and G’s true wishes and to ascertain whether they were operating under the influence of D in relation to the contact that they had with him. The Official Solicitor appointed an independent social work expert, F, to visit and interview G and M. F’s preliminary evidence suggested that M and G had been, or might have been, deprived of capacity to decide those issues due to the undue influence of D.

The proceedings continued but a preliminary issue arose as to whether the court had inherent jurisdiction to handle cases which involved vulnerable adults in circumstances where the Mental Capacity Act 2005 (the 2005 act) was not engaged. The judge held that the High Court did have inherent jurisdiction to protect adults despite the 2005 act and the court therefore had jurisdiction to make orders in respect of M and G, notwithstanding that one or both of them continued to retain capacity under the terms of the act.

By the time the matter had fallen to be determined, it had been agreed that G lacked capacity within the meaning of the 2005 act and his case then proceeded under the statutory scheme in the Court of Protection. The court's order included a wide-ranging interim injunction made under its inherent jurisdiction with respect to M and, in respect of G, under the act, injunctions that restrained D's behaviour towards his parents, care staff and other professionals. The defendant appealed.

The defendant submitted that the act and its supporting Code of Practice represented comprehensive statutory provision for the protection of adults and parliament had intended that it would be impermissible for the High Court to exercise any jurisdiction in relation to the care and protection of adults who fell outside the provisions of the act. Consideration was given to article 8 of the European Convention on Human Rights. The appeal would be dismissed.

The court's inherent jurisdiction was targeted solely at those adults whose ability to make decisions for themselves had been compromised by matters other than those covered by the 2005 act. The jurisdiction was, in part, aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy had been compromised by a reason other than mental incapacity because they 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, or incapacitated or disabled from giving or expressing a real and genuine consent.

The act itself was expressly limited to plain 'mental capacity'. It established a wide ranging and, for those matters that were within its compass, a comprehensive statutory code and scheme. However, the act was expressly limited to people who lacked capacity; nothing provided for individuals who might lack capacity for a reason other than an impairment of, or disturbance in the functioning of, the mind or brain. Nor was there any express reference to the inherent jurisdiction of the High Court. It had been open to parliament to include a provision that permitted or restricted the use of the inherent jurisdiction in cases that related to the capacity to make decisions which were not within the act.

In the absence of any express provision, the clear implication was that if there were matters outside the statutory scheme to which the inherent jurisdiction applied, then that jurisdiction continued to be available. Further, there was a sound and strong public policy justification for the continued availability of the court's inherent jurisdiction. Furthermore, the use of the inherent jurisdiction in such circumstances was compatible with article 8 of the Convention in just the same manner as the 2005 act was compatible. Any interference with the right to respect for an individual's private or family life was justified to protect his health and/or to protect his right to enjoy his rights pursuant to article 8 as he might choose without the undue influence, or other adverse interference, of a third party.

Any orders which the court might make in a particular case had to be only those which were necessary and proportionate to the facts of that case in like manner to the approach under the act (see [53], [54], [57], [58], [61], [63], [66], [77], [78] of the judgment). SA (vulnerable adult with capacity: marriage), Re [2007] 2 FCR 563 approved; F, Re [1990] 2 AC 1 applied; T (adult: refusal of treatment), Re [1992] 4 All ER 649 applied; C, Re [1994] 1 FCR 705 applied; G (an adult) (mental capacity: court's jurisdiction), Re [2004] All ER (D) 33 (Oct) applied; Westminster Social and Community Services Department v C [2008] 2 FCR 146 considered; LBL v RYJ [2011] All ER (D) 290 (Feb) considered.

Decision of Theis J [2011] EWHC 1022 (Fam) affirmed; Paul Bowen and Alison Pickup for the authority; Nathalie Lieven QC and Alex Durance for the defendant.