DL v A Local Authority & ors [2012] EWCA Civ 253

WTLR Issue: December 2012 #125





Mr and Mrs L were an elderly married couple who, at the relevant time, were living with DL, their middle aged son, in the family home. Neither were at that time incapable, by reason of any impairment of, or disturbance in the functioning of, the mind or brain, of managing their own affairs within the meaning of the Mental Capacity Act 2005 (MCA). However, the local authority, which was concerned about alleged threatening and controlling behaviour on the part of DL, sought and obtained injunctive relief to protect Mr and Mrs L. Evidence obtained by the official solicitor concluded that both Mr and Mrs L were unduly influenced by DL to the extent that their capacity to make balanced and considered decisions was compromised or prevented. As the jurisdiction to make those orders did not empower the Court of Protection within the statutory scheme enacted by the MCA, a point of law arose as a preliminary issue in the proceedings as to the extent to which the inherent jurisdiction of the High Court to make orders for the protection of vulnerable adults which, it was accepted, existed prior to its commencement, had survived the enactment of the MCA. DL argued that the MCA and its supporting Code of Practice conferred comprehensive statutory provision and that Parliament intended that it would be impermissible for the High Court to exercise any jurisdiction in relation to the protection of adults which fell outside the provisions of the legislation. Theis J disagreed and, in her judgment of 19 April 2011, held that the High Court’s inherent jurisdiction to protect vulnerable adults had survived the enactment of the MCA and therefore was able to make orders to protect Mr and Mrs L from DL, though one or both of them continued to retain capacity within the meaning of the MCA. DL appealed.

Held (dismissing the appeal)

The decision of Munby J (as he then was) in Re SA (vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam), which had described the extent of the inherent jurisdiction to protect vulnerable adults, was neither unsupported by earlier authority nor an impermissible development of earlier authority. The Court of Appeal in Westminster City Council v C [2008] EWCA Civ 198 had dismissed grounds of appeal that argued that the inherent jurisdiction relating to adults had not survived the commencement of the MCA. That jurisdiction was neither extensive nor all encompassing; it was targeted solely at those adults whose ability to make decisions for themselves had been compromised by matters other than those covered by the MCA. The judgment of Munby J was descriptive, not definitive; indicative, not prescriptive. In the light of the earlier authorities, the inherent jurisdiction was not confined to cases where a vulnerable adult was disabled by mental incapacity from making his own decisions about the matter in hand and cases where an adult, although not mentally incapacitated, was unable to communicate his decisions. Like the well-established parens patriae or wardship jurisdiction in relation to children, the authorities demonstrated that the inherent jurisdiction could be exercised in relation to a vulnerable adult, who, even if not incapacitated by mental disorder or mental illness, was (or was reasonably believed to be) either:

  1. (i) under constraint;
  2. (ii) subject to coercion or undue influence; or
  3. (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.

Moreover, nothing in the MCA made express provision with respect to persons who might lack capacity for a reason other than an impairment of, or disturbance in the functioning of, the mind or brain; neither was there any express reference to the inherent jurisdiction of the High Court. The existence of ‘elder abuse’, as with the over bearing of the will of a vulnerable adult of any age, was a sound and strong public policy justification for the survival of the inherent jurisdiction of the High Court to make orders, where justified by the facts, as such individuals required and deserved the protection of the law so that they could regain the autonomy that had been compromised by a reason other than mental capacity within the meaning of the MCA.

JUDGMENT LORD JUSTICE MCFARLANE: [1] The focus of this appeal is a single point of law. The point relates to the extent to which the inherent jurisdiction of the High Court may be deployed following the implementation of the Mental Capacity Act 2005 for the protection of adults who are perceived to be vulnerable. The …
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Counsel Details

Miss Nathalie Lieven QC (Landmark Chambers, 180 Fleet Street, London EC4A 2HG, tel 020 7430 1221, e-mail clerks@landmarkchambers.co.uk) and Mr Alex Durance (54 Doughty Street, London, WC1N 2LS, tel 020 7404 1313, e-mail enquiries@doughtystreet.co.uk) instructed by Ison Harrison Solicitors (Duke House, 54 Wellington Street, Leeds, LS1 2EE, tel 0113 284 5000, e-mail mail@isonharrison.co.uk) for the appellant.

Mr Paul Bowen and Miss Alison Pickup instructed by local authority legal services for the respondent.

Cases Referenced

Legislation Referenced

  • Children Act 1989, s100
  • Family Law Act 1996, s63R
  • Human Rights Act 1998, Arts 3, 8
  • Mental Capacity Act 2005 ss2, 48