Mental health law briefing 179 – The Court’s inherent jurisdiction and the Mental Capacity Act

The recent case of DL and Others v A Local Authority [2012] EWCA Civ 253 (“DL and Ors”) confirms that the Court has an inherent jurisdiction to deal with cases which would otherwise fall outside of the confines of the Mental Capacity Act 2005. It has established that the Court can intervene to protect “vulnerable” adults who otherwise have sufficient capacity as defined under the Act. This would therefore allow the Court to act, even though the adult was not within the remit of the Mental Capacity Act.

Facts of the case

Mr and Mrs L, both in their 80s, lived with their son, DL in a house belonging to Mr L. Although neither Mr L nor Mrs L lacked capacity to decide whether to live with their son, the Local Authority became concerned that DL was inflicting both mental and physical harm upon his parents. Amongst other things, it was concerned that DL was preventing them from having contact with friends and family, that DL was trying to coerce Mrs L into moving out and into a care home, and that DL was restricting the movement of his mother within their home.

The Local Authority sought an injunction to prevent DL from continuing with this behaviour, which was granted. The matter was subsequently appealed, although unsuccessfully.

The Court of Appeal’s decision to uphold the injunction is based upon what the Court described as “ a sound and strong public policy justification.” In the case of Re SA [2005] EWHC 2942 (Fam), the Judge stated that the Court’s inherent jurisdiction

“could be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is or is 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”

The underlying principle was accepted by the Court of Appeal in DL and Ors, although the Court advised that it would be difficult to define “vulnerable” in this context, and as such it should be left to Common law to identify such cases.

Commentary

What is clear, however, is that the Court has recognised that notwithstanding the intentions behind the Mental Capacity Act 2005, there exists a grey area of those who lack capacity, not under the traditional definition, but because of the actions of some third party. The long established principle of undue influence seems key to this, and care will need to be taken in identifying such action.

It was further held that this inherent jurisdiction is compatible with Article 8 of the European Convention on Human Rights, a right to respect for private and family life, which may provide further justification for a local authority taking positive action. However, the Court’s unwillingness to set down a definition for those who should be deemed “vulnerable” suggests that future applications are not guaranteed to succeed, and that exercise of this power will very much depend on the individual facts of each case.

That said, the recognition of a class of vulnerable people who would otherwise fall outside of the scope of the Mental Capacity Act provisions is to be welcomed and it is hoped, may provide a justification for action to be taken, not least where the categories set out by Munby J in Re SA are met.

© RadcliffesLeBrasseur
May 2012


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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