Judge: Maurice Kay, McFarlane and Davis LJJ
Citation:  EWCA Civ 253
Summary: The Court of Appeal had to decide whether a ‘jurisdictional hinterland’ existed outside the borders of the Mental Capacity Act 2005 (‘MCA’) to deal with ‘vulnerable adults’. The assumed – but mainly disputed – facts were that, whilst living with his elderly parents, DL was physical and verbally aggressive to them. He was alleged to have controlled their contact with others, including health and social care professionals, and to have sought to coerce his father into transferring ownership of the house into his name, whilst placing considerable pressure on both parents to have his mother moved into a care home against her wishes.
At first instance, both parents were assumed to have capacity to make decisions regarding their residence and contact with others for the purposes of the MCA. However, the local authority had initiated proceedings under the High Court’s inherent jurisdiction on the basis that DL’s parents lacked capacity, not because their mind or brain was impaired or disturbed, but as a result of the undue influence and duress that he brought to bear upon them. An interim injunction restrained DL from misbehaving.
DL argued that the MCA provided a comprehensive statutory code for those lacking capacity and that to recognise a jurisdiction beyond it would undermine a person’s right to autonomy. The fact that someone with capacity chose to live in a risky or exploitative situation did not give the court any right to intervene. The local authority, on the other hand, contended that such an approach would create a new “Bournewood gap” in respect of those who fell outside the protection of the MCA but whose capacity was overborne by non-MCA circumstances, such as undue influence.
The Court of Appeal retraced the pre-MCA case law and Parliament’s response to the Law Commission’s paper. One key issue was whether Parliament’s silence on the matter meant that the prior jurisdiction was thereby ousted or respected. MacFarlane LJ held:
“61… In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’…”
It was therefore unanimously held that the inherent jurisdiction survived and was “targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005” (para 53). A person’s right to autonomy was in fact a strong argument in favour of retaining the jurisdiction which, endorsing Re SA (Vulnerable adult with capacity: marriage)  EWHC 2941 (Fam):
“… is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are … (a) under constraint; or (b) subject to coercion or undue influence; or (c) 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”. (para 54).
Public policy also justified its survival: “the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes” (para 63). It was not easy to define and delineate the ‘vulnerable adult’, “nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard” (para 64). Instead, it was better for the law to develop and adapt on a case-by-case basis. However, Davis LJ issued a note of caution to local authorities:
“76… It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state of affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that.”
Having recognised the jurisdictional hinterland, what powers could it exercise? Only those orders that were “necessary and proportionate to the facts” were permitted (para 66). Most significantly, the Court expressly commended the approach taken in LBL v RYJ and VJ  EWHC 2665 (COP) where Macur J. had rejected the contention that it could be used to impose a decision upon a capacitous adult as to whether or finance and instead focused on “the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making…” (emphasis added). MacFarlane LJ held:
“67. The facilitative, rather than dictatorial, approach of the court that is described there would seem to me to be entirely on all fours with the re-establishment of the individual’s autonomy of decision-making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.”
“68… I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.”
Comment: For an alleged abuser to argue that the law lacked the jurisdiction to protect the alleged abusee was always going to be a hard sell. Nonetheless, the Court of Appeal’s affirmation of the inherent jurisdiction and its facilitative approach is hugely significant and no doubt controversial. It comes at a time when the Government is presently deciding the extent to which adult safeguarding processes should be put onto a statutory footing on the back of the recent work of the Law Commission. The ‘great safety net’ is but one of many tools available to safeguard vulnerable adults and its recognition is not much of a surprise. What is perhaps of more importance is the inherent jurisdiction’s scope, approach and powers.
Whilst the Court’s reluctance to exhaustively define the ‘vulnerable adult’ is entirely understandable, it does leave uncertain the boundaries of this jurisdictional hinterland. Numerous definitions exist in various judicial, legislative and policy guises. The term ‘adult at risk’ is currently preferred as it focuses less on the person’s inherent vulnerability and more on their objective circumstances; what might be called ‘situational’ or ‘circumstantial’ vulnerability to which all of us may at some point succumb.
To illustrate the issues with a trivial example, imagine the following. The authors decide to dine at an authentic Japanese restaurant. Our decision may seem unwise to others as not one Japanese word can be uttered amongst us. The menu is in Japanese and the staff do not speak English. The specific decision we need to make is what to eat. Our inability to make that decision results, not from an impairment or disturbance affecting the functioning of the mind or brain, but from our inability to speak Japanese. We therefore lack capacity for a non-MCA reason. We are situationally vulnerable.
With its ‘theoretically limitless’ powers, how should the inherent jurisdiction protect these vulnerable adults? The goal of the jurisdiction, as Kirsty Keywood suggests, “is to safeguard decision making, rather than to safeguard well¬being per se” ((2011) 19(2) Medical Law Review 326). This is reflected in the Court of Appeal’s insistence on taking a facilitative, rather than dictatorial, approach. A High Court judge would thereby facilitate our ability to make the culinary decision, perhaps by requiring an interpreter, rather than choosing the dish for us. Unlike the MCA, the inherent jurisdiction would not therefore permit proxy judicial decision-making. However, the distinction between the facilitative and dictatorial approaches is not always easy to draw where injunctive and declaratory powers are concerned.