Judge: Macur J.
Citation:  EWHC 2665
Summary: This case represents something of a cautionary tale regarding the requirement to ensure that evidence as to capacity is cogent, and also further clarification upon the scope of the inherent jurisdiction. Although it was decided before the case of A v DL, RL and ML  EWHC 2675 (Fam) reported in our last issue, it only came to our attention subsequent to that issue, and, more pertinently, does not seem to have been before the President in that latter case.
Applications were before Macur J by the local authority, LBL, seeking declarations that RYJ lacked capacity to make day-to-day decisions concerning her daily life and to appoint an appropriate officer of the local authority to be made Health and Welfare and Finance Deputy. In the alternative, if RYJ was determined to have capacity, LBL sought to invoke the inherent jurisdiction of the court, initially seeking those orders commonly following decisions as to “best interests” of an incapacitated person and amounting to empowering the local authority to direct where she should reside, be educated and with whom she had contact and appointing the local authority to receive benefits payable to her.
LBL’s position changed in the course of the hearing; by the end, they conceded that they were unable to disprove the presumption of capacity to the relevant standard. Macur J recorded (paragraph 5) that they sought to preserve RYJ’s position by way of recitals and preambles to an order ensuring that her decisions were facilitated and articulated with appropriate support. Macur J noted that no argument had been advanced by LBL asserting her jurisdiction to dismiss the mother as “appointee” for the purpose of receipt and management of benefits and appoint the local authority in her place in the face of the written arguments made by the OS and on behalf of VJ (RYJ’s mother) denying the same. She accepted the latter arguments and noted (at paragraph 5) that the appointment of an “appointee” in this regard was in the discretion of the Secretary of State for Works and Pensions.
VJ denied that her daughter had capacity to make decisions as to care, residence and education but, it appears Macur J, she acknowledged that RYJ has capacity in decisions as to contact. It was common ground that she lacked litigation capacity.
The OS took issue on RYJ’s behalf with the assertion that she lacked capacity in other than financial matters. He argued against the use of the inherent jurisdiction to make orders which subvert the intention of the MCA 2005 to preserve the autonomy of the individual subject to lack of capacity.
Macur J noted that the diagnostic test provided for in s.2 MCA 2005 was met, but that the second was in dispute. At paragraph 25, she held that: “[s]ignificantly, as I indicate below, I read the phrase “to a matter if at the material time he is unable to make a decision for himself in relation to the matter” in section 2 to mean that capacity is to be assessed in relation to the particular type of decision at the time the decision needs to be made and not the person’s ability to make decisions generally or in abstract. This, it appears to me, is an important distinction lost in the case of VJ and, to some extent, LBL.”
Macur J went through the evidence before her in considerable detail and, perhaps significantly, indicated that she was prepared to place significant weight upon the evidence as to capacity given by Stewart Sinclair, an experienced independent social worker. The sections of the judgment setting out the evidence and her comments thereupon bear close attention because of the nuanced approach that she indicated was necessary to adopt in the case of a teenager, commenting (at paragraph 33) that she considered that there had been “inadequate regard paid by LBL and VJ to RYJ’s potential tendency to teenage ennui, manipulation and fickleness which are traits not confined to those lacking capacity.”
Macur J then turned to consideration of the Court under the inherent jurisdiction, holding as follows at paragraphs 61 ff:
“61. I turn to consider LBL’s application to invoke the inherent jurisdiction. As I have indicated, by the conclusion of the proceedings LBL seemed to suggest that their concerns could be met by appropriate recitals. But it is necessary that I deal, at least in brief, with the application that they within the inherent jurisdiction of the court.
62. I do not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst “capacitous” for the purposes of the Act, are “incapacitated” by external forces –whatever they may be-outside their control from reaching a decision. (See SA (A Vulnerable Adult)  EWHC 2942, at para 79; A Local Authority v Mrs A  EWHC 1549, at para 79). However, I reject what appears to have been the initial contention of this local authority that the inherent jurisdiction of the court may be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance. I adopt the arguments made on behalf of RYJ and VJ that the relevant case law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions.
63. RYJ’s vulnerability is assessed by Mr. Sinclair as that which is associated with her age and limited intellectual functioning. I am not satisfied that it has been established before me that she is unable to recognise and withstand external pressure to appropriate degree nor that she is or is likely to be subject to physical constraint or behaviour that will impact upon her free will and ability and capacity to reach decisions concerning residence, care and contact. All the evidence in the papers before me suggests that even during her minority she was able to withstand the external desires of others by her physical resistance to the same; that she has been able to withstand decisions enforced upon her and that she has been able to verbalise her wishes. The difficulty, as I apprehend it to be, arising from the approach of others to the expression of those wishes.
64. If I were to have found that her vulnerability was exceptional/greater by reason of her limited intellectual functioning and age, these factors would need to have been considered in reaching my decision concerning capacity. If she is unable to withstand external pressure of “normal/everyday” degree, whether emotional or physical, it seems to me that it would necessarily inform the answer to the question posed at section 3(1)(c) of the Act.
65. In that I have not found that she is so exceptionally vulnerable for the purpose of my consideration under the Mental Capacity Act 2005, it seems to me that there is little that LBL can rely upon in hoping to invoke the inherent jurisdiction of the court. What is necessary in this case, quite clearly, is that the established network already available to RYJ is consolidated with co-operation of LBL, VJ and other family members.”
Comment: Macur J’s comments at paragraph 64 of her judgment are of particular significance, and no little difficulty. In the authors’ view, they come close to denying any real space for the inherent jurisdiction at all, because they imply that the factors that would point towards a person falling within the inherent jurisdiction are, on a proper analysis, factors that fall for consideration in answering the question as to whether they lack the relevant capacity for purposes.
Macur J’s comments also make it clear that – at least from her perspective – the inherent jurisdiction of the Court is considerably more limited than some have advocated and that it can only properly be exercised so as to secure unencumbered decision-making (rather than, for instance, allowing decisions to be taken on behalf of the vulnerable adult). As noted above, however, Macur J’s judgment was not before the President in the A v DL, RL and ML case, and it is perhaps not immediately obvious how to square her restrictive view of the inherent jurisdiction with the rather more expansive view taken by the President.