Mental Capacity Case

R(Muhammad) v SSHD (and two linked cases)

Stewart J

Summary: These three - linked - applications for interim relief in judicial review proceedings contain an interesting (if glancing) discussion of the width of the category of those falling within the definition of the 'vulnerable adults' identified by Munby J (as he then was) in Re SA [2006] 1 FLR 867.

The three Claimants were all in immigration detention; they were challenging the lawfulness of that detention, but sought their immediate release from detention on an interim basis pending the final determination of their claims. The basis upon which they did so was on the basis that their mental health was such that they were not fit for detention; specifically, they relied upon the fact that they were refusing food and drink. Their precise circumstances varied; in considering the position of two of the Claimants, Stewart J noted that it was common ground that that they both had capacity to litigate and to make decisions about refusing food and/or treatment. It was, further, common ground, that "[t]he Court's inherent jurisdiction to act to protect a vulnerable adult who is incapacitated for reasons not covered by the Mental Capacity Act 2005 cannot be exercised. The Court has no jurisdiction in relation to an adult who has capacity and is not a 'vulnerable adult'. In the case of Re: SA (Vulnerable Adult with Capacity: Marriage) (2006) 1 FLR 867 at 82 Munby J (as he then was) gave a description of a 'vulnerable adult'. I appreciate that it was only a description and not a definition. That description was adopted by the Court of Appeal in Re L (Vulnerable Adults: Court Jurisdiction) (No 2) (2012) 3 WLR 1439. The Claimants in the present case do not, it seems to me, come within the definition of a 'vulnerable adult'. Nor did either party contend that they did." (paragraph 35(iii)).

In refusing to grant them interim relief, Stewart J placed particular emphasis upon the fact that, whilst their continued detention in a detention centre would be unlawful, it would not be unlawful to detain them in hospital (as the Secretary of State was fully prepared to bring about). He further considered that the Claimants' refusals to accept hospitalisation were made with capacity to do so; they therefore bore the responsibility for their own actions, and could not rely upon the consequences to establish that they should be discharged immediately.

On the facts of these cases, it is perhaps not entirely surprising that the court did not engage in a detailed discussion of the scope of the class of vulnerable adults. It would, though, appear from Stewart J's comments that his approach to the class did not encompass those whose need for protection arose from their own actions (as opposed to those of third parties). If this is correct - and Alex for one would have some reservations as to whether it is - this might suggest that the 'great safety net' of the inherent jurisdiction upon which the Government places such reliance would not extend to secure adults against the consequences of self-neglect and self-harm.