LEARNING OBJECTIVES

After reading this article you will be able to:

• • describe the orders a court may make, under its inherent jurisdiction, to protect vulnerable but capacitous individuals

• • assess the capacity a person has in relation to contact with others

• • reflect on some of the legal issues that must be considered when investigating a person at risk of abuse or neglect.

The ‘inherent jurisdiction’ is the power of the High Court to hear any matter it believes it should hear unless there is a statute or rule that prevents it from doing so. The High Court is the third highest court in England and Wales (below the Court of Appeal and the Supreme Court) and it deals with civil cases (non-criminal) and appeals of decisions made in lower courts. Before the Mental Capacity Act 2005 (MCA), when someone lacked capacity, the High Court had the right to make declarations about issues relating to best interests or medical treatments and this was established by the court's inherent jurisdiction. That jurisdiction ceased once there was relevant statute law, in this case the MCA. The MCA itself is very much based on the jurisprudence (case law) of the High Court, as the court developed what it means to lack capacity and how to determine what is in an incapacitous person's best interests.

This inherent jurisdiction is rooted in the common law and is in the armoury of powers of courts in England and Wales that may apply across a range of different scenarios (Box 1). Some clinicians may be familiar with the High Court exercising its inherent jurisdiction in decisions relating to children, for example making a child a ‘ward of court’. It is a wide-ranging power that the court possesses in protecting children in areas where statutory remedies, such as under the Children Act 1989, are insufficient. In relation to adults there are also gaps in the statutes where it has been necessary for the court to exercise its inherent jurisdiction. One group to which this has been applied are those adults who may not have lacked decision-making capacity but were ‘vulnerable’ (or ‘at risk’) for some reason. It is this group that we will focus on for most of our discussions and which exemplifies a complex and emerging area of case law.

Mental health teams may be involved with an individual for whom safeguarding interventions are necessary or ongoing. Clinicians may then take part in safeguarding discussions, care planning, assessments of relevant decision-making capacity and consideration of practical and applicable solutions, for example the appropriateness of using the Mental Health Act 1983 (MHA). Where criteria for detention under the MHA are not met, it may not simply be the case that if capacity is present, the requirement to respect unwise decision-making and personal autonomy draws a line under the issue. It is important that clinicians are aware that there may be legal routes that can be pursued to protect individuals even when capacity is preserved, which may include a decision under the court's inherent jurisdiction. It is unlikely that the onus would be on a clinical service itself to bring proceedings to court and, on most occasions, this will be the responsibility of the local authority. However, if the intervention of the court is ultimately thought to be necessary, practitioners should be mindful that documentation of these different elements or considerations highlighted above will be submitted as evidence. The flow diagram in Fig. 1 illustrates how in a typical case the inherent jurisdiction may be applied.

FIG 1

Flow diagram to illustrate how the inherent jurisdiction may be applied.

In the first instance we will discuss ‘the vulnerable’, considering some of the potential legal alternatives to court proceedings under the inherent jurisdiction, before discussion of the legal basis of safeguarding. We will then outline one of the most likely aspects of capacity that clinicians (or others) may be called on to assess, that is the capacity for an individual to decide on the contact he or she should have with another. Finally, we will discuss some cases in the sphere of the inherent jurisdiction and how it has been deployed in delivering outcomes.

To whom does the inherent jurisdiction apply?

The inherent jurisdiction is often called the ‘great safety net’ (Re F (Mental patient: Sterilisation) [1989]) allowing the court to intervene where there is no other course of action available. Many of the cases brought under the inherent jurisdiction have related to people with intellectual disabilities (commonly referred to as learning disabilities in UK health services) or older people in volatile or abusive relationships, although practically it could apply to someone without any physical or cognitive disability (see Al-Jeffery v Al-Jeffery [2016]). Vulnerability in this context may result from an inability to make a free choice because of abuse, neglect, undue influence or coercion rather than because of a disturbance or impairment in mind or brain (in which case the MCA would apply). An ‘impairment’ may be present but capacity, in the usual sense, is retained. Strictly, the inherent jurisdiction exists to facilitate the process of unencumbered decision-making by those who would otherwise be controlled by external pressures. In other words, it is to allow people enough breathing space to make their own decisions.

A seminal case, which is the start of a series of court judgments that make up the modern view on the inherent jurisdiction, is that of SA (A Local Authority v MA & Ors [2005]). As a child there had been court judgments protecting SA from the risk of an unsuitable arranged marriage. Given she had turned 18, the key issue was whether the court could invoke its inherent protective jurisdiction in respect of a vulnerable adult who had capacity to marry. The judge in the case, Mr Justice Munby, decided it could. A description of vulnerability was given in the following way:

These concepts were elaborated further:

There are important qualifications to these general descriptions in that just because someone is disabled, or has some sort of impairment, it does not necessarily mean they are considered ‘vulnerable’ for the purposes of deploying the inherent jurisdiction. An example of this is Mr N, aged 25 at the time of court proceedings, and diagnosed with severe autism, an anxiety disorder and traits of an emotionally unstable personality disorder but no significant intellectual impairment (Wakefield MDC and Wakefield CCG v DN and MN [2019]). He had been convicted of several criminal offences and was required to live in supported living accommodation in circumstances that ostensibly appeared to be a ‘deprivation of his liberty’ (see later), thereby requiring the authority of the court. Mr N experienced what were described as ‘meltdowns’ when particularly anxious or aroused and, at those times, he lacked capacity to manage his behaviour and ‘the ability to think rationally and weigh up his decisions’. When in a ‘meltdown’ he became highly agitated, using ‘extremely threatening and violent language [and] intimidating behaviour’. Although he was vulnerable in some ways, the court did not find that he was vulnerable in the context described above. He was not regarded as requiring the intervention of the High Court under its inherent jurisdiction as he was able to consent to his residence and care arrangements. Declarations under the MCA could be made to cover occasions when he had meltdowns and lost capacity. In the same vein, although wide-ranging in its powers, the inherent jurisdiction is not applicable to all potentially vulnerable individuals and it is not ‘a lawless void permitting Judges to do whatever we consider to be right for children or the vulnerable’ (London Borough of Redbridge Council v SNA [2015]).

Alternatives to the inherent jurisdiction

Because the inherent jurisdiction applies where there are no statutory powers to intervene, we must first consider what legal alternatives may be available (Fig. 2) and, within those alternatives, where safeguards in relation to Article 5 rights (the right to liberty and security) of the European Convention on Human Rights are derived. For example, if a person has a mental disorder within the meaning of the MHA (i.e. any disorder or disability of mind) and additional statutory criteria are met, then it may be that the MHA can be applied. Readers will be aware that the MHA is the main piece of legislation that covers the assessment, treatment and rights of people with a mental disorder. The First-tier Tribunal in England (the Mental Health Review Tribunal in Wales) is the legal forum that determines whether grounds for detention under the MHA exist. It is the means by which a patient's rights under Article 5 may be challenged.

FIG 2

Statutory alternatives to the inherent jurisdiction.

The MCA has been in force since 2007 and applies where a person is unable to make a decision about a specific matter because of an ‘impairment or disturbance in the functioning of the mind or the brain’ (MCA, section 2(1)). If a person lacks mental capacity about an issue then, under the MCA, a decision can be made in their best interests using that Act (section 4). It applies in England and Wales to people over 16 years of age who are unable to make some or all decisions for themselves. The primary objective of the MCA is to promote and safeguard decision-making within a legal framework. It is the Court of Protection that has jurisdiction when there is a dispute under the MCA and it has considerable importance in clinical and social care. The general powers of the Court of Protection include deciding whether a person has capacity to make a particular decision, whether an action is in a person's best interests, confirming or revoking the validity of a lasting or enduring power of attorney, appointing deputies and ruling whether a person is being deprived of their liberty.

There may be other powers available to the person at risk that may be deployed against the perpetrator(s). An adult being abused can apply for a ‘non-molestation order’ (section 42 of the Family Law Act 1996) or ‘protection from harassment injunctions’ (Protection from Harassment Act 1997), although under the circumstances that we are discussing this may be unrealistic. If a crime or domestic violence is suspected, there are powers available to the police and the courts. It will be the facts of a particular case that determine the available options. By way of an example, in the case of Mr and Mrs L discussed below (DL v A Local Authority [2011]), to protect the couple from the alleged abuses of their son the local authority had considered, and rejected, several alternatives before bringing proceedings to court. These were prosecution using the criminal law, applying to the Court of Protection, making an application for an antisocial behaviour order (ASBO) under the Crime and Disorder Act 1998 and applying for an injunction under the Housing Act 1996.

Safeguarding under the Care Act

Pursuing proceedings under the court's inherent jurisdiction is lengthy and expensive and therefore all other means of resolution must have been exhausted, and in any event, one is only to turn to it if the available statutes do not cover the scenario. In the circumstances of suspected abuse, safeguarding processes will be activated and should facilitate close multi-agency and multiprofessional working. The Care Act 2014 (and the Social Services and Well-being Act 2014 in Wales) imposes duties on a local authority in relation to safeguarding and adult protection. The main safeguarding sections in the Care Act are summarised in Box 2.

These acts are primarily about care and support for adults and their carers, with the purpose of consolidating a raft of legislation in relation to social care. Safeguarding in the statutory guidance means protecting an adult's right to live in safety, free from abuse and neglect. It also includes the processes of ‘adult protection’, which refers to the investigations and interventions when abuse is suspected. The Care Act also sets out ‘key principles’ that underpin all adult safeguarding work (Box 3).

The duties of a local authority specifically apply to an adult who:

• • has needs for care and support (whether or not the local authority is meeting any of those needs)

• • is experiencing, or at risk of, abuse or neglect, and

• • as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of, abuse or neglect.

If an organisation works with vulnerable adults there should be adult safeguarding policies and procedures. A local authority must carry out an assessment in a safeguarding case even if the person refuses. What happens as a result of any inquiry will depend on factors such as the degree of risk and what is required to protect the person concerned. The inquiry may result in the formulation of an Adult Safeguarding Plan recorded on the person's care plan. This should be timely and follow from the conclusion of the inquiry. The purpose of the plan is to formalise and coordinate the range of actions to protect the adult and help the person to recover from the experience of abuse or neglect. The local authority will take responsibility for organising and coordinating the formulation of the plan. It should set out:

• • what steps are to be taken to assure the adult's safety in future

• • the provision of any support, treatment or therapy, including advocacy

• • any modifications needed in the way services are provided

• • how best to support the person through any action they take to seek justice or redress, and

• • any on-going risk management strategy as appropriate.

Once the steps are in place and recorded in a care plan, they should be taken and kept under review by an identified lead professional. In most cases this will be the responsible manager from the local authority. There is also recognition of the role of carers in relation to safeguarding in recognising abuse, being victims of abuse and being either intentional or inadvertent perpetrators of abuse. An important element of supporting someone at the centre of safeguarding proceedings may be the appointment of an advocate (under section 68 of the Care Act).

Capacity in relation to contact with others

If a safeguarding notification is being made, consent for this should be sought (but may not be required) by giving the individual information about the safeguarding process. Following from this, depending on the risks, assessments of capacity may be necessary in relation to decisions such as where the person lives or the care they receive. Where there is suspected coercion or abuse, the assessment of capacity to decide on whether one person should have contact, or not, with another is a relatively common requirement for local authorities. These challenges certainly arise in routine clinical practice, for example whereby a person with dementia is at risk or subject to exploitation from a family member or other. The tension may be in differentiating between what amounts to unwise but otherwise autonomous decision-making regarding the contact and incapacity that requires action in the person's best interests.

Capacity is clearly decision specific, but in relation to contact capacity, the information required to make the decision will vary because the risks of contact will depend on the individual and the circumstances. Therefore, the courts have decided that, unlike sexual capacity or marriage, the identity of the person in relation to contact is important. Decisions relating to a ‘status or right’ (marriage and sex) are therefore seen as different from those ‘grounded in the specific factual context’ (contact) (A Local Authority v TZ (No. 2) [2014]). Because of this difference, the lower threshold that applies to the former means that a person may have capacity to consent to marriage or sex but lack capacity to maintain contact with an individual (a case relating to marriage is PC and NC v City of York Council [2013]). This is not perhaps as counterintuitive as it first appears, as the court can make declarations about limiting or preventing the contact with an alleged abuser, even if capacity in relation to engaging in sexual relations is retained.

As with all capacity assessments, the starting point in assessing contact capacity are the principles of the MCA and the information and support provided to assist the individual in making the decision. In the case of Mr L, with intellectual disabilities, the information required for him to have contact with his father is given in Box 4. In any assessment of capacity, the information will be individual and situation specific, but it is helpful to look at the factors that were relevant in this man's case. In the event, he was assessed as having capacity and the inherent jurisdiction was invoked in order for him to be safeguarded (LBX v K, L and M [2013]).

In the context of a safeguarding investigation, the determination of a lack of contact capacity (and if relevant, including whether the person can grasp that someone else may have interests contrary to theirs) will identify whether they fall under the scope of the MCA and thereby the jurisdiction of the Court of Protection (see Ruck Keene Reference Ruck, Butler-Cole and Scott2020). If capacity is present, and they remain at risk, it may then be necessary to apply to the High Court to make a declaration under its inherent jurisdiction.

What actions can be taken under the court's inherent jurisdiction?

In considering what actions can be taken under the inherent jurisdiction, it is worth highlighting some key points made by the judge in the case of BF (A Local Authority v BF [2018]; see also the case of Mr Meyers below). The inherent jurisdiction may be deployed for the protection of vulnerable adults; in some cases, a vulnerable adult may not be incapacitated within the meaning of the MCA, but may nevertheless be protected under the inherent jurisdiction; in some of those cases, capacitous individuals may be of unsound mind, i.e. experience a mental disorder; in exercising its powers under the inherent jurisdiction, the court must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual.

The aim underpinning the inherent jurisdiction is to facilitate the process of unencumbered decision-making, thereby promoting the autonomy of the person who requires safeguarding, pursuing the least intrusive option. This reflects the safeguarding principles referred to above. Orders under the inherent jurisdiction should be directed against alleged perpetrators of abuse and only under exceptional circumstances should they restrict the abused. It may be appropriate for a court to take or maintain interim protective measures (as was the case for Mr Meyers) in relation to the abused while carrying out necessary investigations or interventions. There are additional considerations for a local authority when seeking a court order (or injunction) designed to ‘regulate the conduct of the subject’, which may include the abuser or the person being abused (Redcar & Cleveland Borough Council v PR [2019]). If the person is unlikely to comprehend the purpose of the injunction, or will not be told of the injunction or will not understand the effect of a breach of the injunction, then the application should not be made, because any injunction is just not likely to be effective. An alternative course of action may be required.

In the case of on older married couple (Mr and Mrs L referred to above) the local authority brought proceedings to protect the couple from alleged abuses by their son DL (DL v A Local Authority [2011]). To put the case into context, some of the facts of the case are detailed in Box 5. The view of the independent social worker appointed was that both Mr and Mrs L were unduly influenced such that their capacity to make balanced and considered decisions was impeded. Using its inherent jurisdiction, the court issued injunctions (later supported by the Court of Appeal) against DL, restraining him from:

• • assaulting or threatening to assault his parents

• • preventing his parents from having contact with friends and family

• • seeking to persuade or coerce his father, Mr L, into transferring the family home to him

• • seeking to persuade or coerce his mother, Mrs L, into moving into a care home

• • engaging in behaviour towards his parents that is otherwise degrading or coercive

• • giving orders to carers

• • interfering in the provision of care and support to Mrs L

• • refusing access to health and social care practitioners

• • behaving in an aggressive and/or confrontational manner to carers and management.

A follow-on decision to the BF case referred to above is that of Southend-on-Sea Borough Council v Meyers [2019], in which BF is named as Mr Meyers. The details of his situation, his contact with the local authority and the passage of his case through the courts are complex, however some points of the case are given in Box 6. The case is unusual in that it was the local authority that was seeking a declaration that it had in fact discharged its responsibilities to Mr Meyers but it does illustrate the actions a court may make. Court proceedings commenced in 2017 and continued for 2 years. Ultimately, a judge held that Mr Meyers did not lack capacity but was a vulnerable adult and therefore within the scope of the inherent jurisdiction. Under the inherent jurisdiction it was decided that Mr Meyers should be prevented from living with his son (referred to as KF), either in the bungalow or in alternative accommodation, and contact with his son should be restricted. The court refused the declaration sought by the local authority and required the local authority to investigate whether KF could be removed from the bungalow in order that that Mr Meyers could return with a suitable package of care. It was also suggested that the local authority should promote the reunification of Mr Meyers with his wider family, who had become estranged because of KF's behaviour, in order to support the care arrangements.

Inherent jurisdiction and deprivation of liberty

Everyone has the right not to be deprived of their liberty except in limited cases specified in Article 5 of the European Convention on Human Rights and provided there is a proper legal basis, i.e. it must be ‘in accordance with a procedure prescribed by law’ (Article 5.1). ‘A person of unsound mind’ is one of the specified cases (Article 5.1[e]). The legislation that authorises a deprivation of liberty (such as detention under a section of the MHA or a deprivation of liberty authorised by the deprivation of liberty safeguards/liberty protection safeguards as scheduled in the MCA) is compliant with Article 5.

The relationship between the inherent jurisdiction and a deprivation of liberty is confusing and perhaps inconsistent. The common law (judge-made law) is not a ‘procedure prescribed by law’ and therefore does not have the certainty, predictability and safeguards that a statute does and so is not considered to meet the terms of Article 5. The issue is whether the court can use the inherent jurisdiction to require a vulnerable adult to live in a particular location where they are subject to complete supervision and control and not free to leave. That is, the ‘acid test’ of the Cheshire West judgment (P v Cheshire West and Chester Council and Anor and P and Q v Surrey County Council [2014]) in the Supreme Court is met and the person is thereby deprived of their liberty (for a discussion of the case and its implications see Brindle Reference Brindle2015). The inherent jurisdiction has been used to authorise a deprivation of liberty in circumstances where there have been legislative gaps. In one case the court's inherent jurisdiction was used to authorise a deprivation of liberty of a patient with capacity who was subject to a conditional discharge under the MHA (Hertfordshire County Council v AB [2018]). In another case, that of Dr A, despite his lack of capacity, his refusal to eat was not considered a symptom or manifestation of his mental disorder. Thereby, the forced feeding he required, which amounted to a deprivation of liberty, fell in a gap between the MCA and the MHA and was then authorised under the inherent jurisdiction (An NHS Trust v Dr A [2013]).

In the case of Ms R (Redcar & Cleveland Borough Council v PR [2019]) temporary court orders were all that were needed to prevent her returning home to reside with her parents (after having made allegations against one of them) and to support her to move to alternative accommodation. Ultimately, she decided she did not want to live with them. The judge's view in this case was that the inherent jurisdiction ought not to be used to authorise the deprivation of liberty of a capacitous person.

For Mr Meyers, despite his clear and consistent wishes, the court's decision was that the restrictions imposed on him by preventing his return home and limiting contact with his son did not amount to a deprivation of liberty. Clinicians and practitioners must be able to recognise when deprivation of liberty might occur and be sensitive to the distinction between a restriction of and a deprivation of liberty. Given the low threshold that engages Article 5 of the European Convention on Human Rights in health and social care settings, it is likely that most would likely consider Mr Meyers to be deprived of his liberty. However, the judge's view was that he was restricting Mr Meyers’ choices rather than depriving him of his liberty and, as with Ms R, it also was on a temporary basis. It seems unlikely that a long-term solution could have been achieved in this way, as that would have been deemed both disproportionate and a deprivation of liberty. For the court to authorise anything other than short-term and urgent restrictions, in the first instance, there would need to be evidence of an unsound mind (not present in the case of Mr Meyers) in order to comply with Article 5. Notwithstanding any interpretation of deprivation of liberty, this case demonstrates the power of the court in overriding capacitous decision-making and some of the legal complexities and challenges that emerge in protecting the vulnerable. Whatever the duration of an authorisation, the court will ask that the matter is brought back before it at regular intervals, keeping the arrangements under very regular review.