Last month I wrote about the continuing role of the High Court’s inherent jurisdiction in deprivation of liberty cases and you can read my earlier post here.
In another case, that of A Local Authority v BF, the High Court made an interim order on 10 December 2018 requiring BF (who was 97 years old) to reside at a care home, over Christmas, and not in his and his son’s home, despite BF having capacity to make decisions about his residence and wanting to return to his home where his son lived.
The order made by the court was expressed to last until a further hearing when the court would hear full argument on what relief could be granted in the case pursuant to the inherent jurisdiction.
However, the local authority appealed on the basis that the order made by Mr Justice Hayden (sitting as the emergency hearings judge on that day) infringed BF’s Article 5 rights to liberty and security of person.
At the initial hearing on 10 December 2018, while Mr Justice Hayden agreed with the local authority that BF had capacity to make decisions concerning his residence and care, pursuant to the Mental Capacity Act 2005 (“the 2005 Act”), and that BF wished to return home to live with his son, he was not able to accept the local authority’s contention that BF was not of unsound mind and that the inherent jurisdiction could not be used to override his capacitous decision to return home.
The date for hearing the full argument before Mr Justice Hayden was subsequently fixed for 16 January 2019.
In the interim, the local authority appealed and the appeal was dismissed by the Court of Appeal on 21 December 2018 on the following basis:
- BF is a vulnerable adult; he is old, blind, infirm, lived in a squalid and dangerous home and was subject to undue influence in his relationship with his son and that he needed protection, despite the fact that he did not lack capacity.
- The test of “unsound mind” is different from the test of capacity and there was prima facie evidence that BF may be of unsound mind.
- In an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5 (Winterwerp v Netherlands).
- Even if BF was not found to be of “unsound mind”, his vulnerability was such that he could not have been returned home without careful planning which is a crucial component of the protection afforded by the High Court’s inherent jurisdiction.
On that basis, Lord Justice Baker did not find Mr Justice Hayden’s decision in the High Court to be wrong.
You can read the Court of Appeal judgment published on 21 January 2019 here.
Paragraphs 4 to 14 of the judgment set out in detail BF’s personal and home circumstances, as well as the detail of his relationship with his son and his son’s own difficulties with drug and alcohol abuse. These may sound all too familiar to those working in this field.
At paragraph 22, Lord Justice Baker sets out, by reference to Mr Justice Munby in Re SA, the law as it applies to the inherent jurisdiction of the High Court to protect vulnerable adults and stated at paragraph 23 the following:
“For present purposes, the important points… are as follows:
a) The inherent jurisdiction may be deployed for the protection of vulnerable adults.
b) In some cases, a vulnerable adult may not be incapacitated within the meaning of the 2005 Act, but may nevertheless be protected under the inherent jurisdiction.
c) In some of those cases, capacitous individuals may be of unsound mind within the meaning of Article 5(1)(e) of the Convention.
d) In exercising its powers under the inherent jurisdiction in those circumstances, the court is bound by ECHR and the case law under the Convention and must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual.
e) In certain circumstances, it may be appropriate for a court to take or maintain interim protective measures while carrying out all necessary investigations.”
The judgments from the hearings before Mr Justice Hayden on 10 December 2018 and 16 January 2019 have yet to be published but the Court of Appeal note the deep humanity which imbued every line of his judgment.
It is often tricky to decide how to approach such complex cases. We have a friendly and experienced team here so do just pick up the phone to discuss any of your matters.