New Year reminder of key judgments from 2019 – when to use the inherent jurisdiction and when to use the Mental Capacity Act 2005

In my earlier blog on PR, Mr Justice Cobb explored, during a hearing on 2 July 2019, whether it was appropriate for an interim injunction to be made under the inherent jurisdiction to protect a vulnerable adult. Some six weeks later, on 14 August 2019, Mr Justice Cobb provided us with some guidance in the case of CD on when to use the inherent jurisdiction, and when to use the Mental Capacity Act 2005 (MCA). 

The case concerned CD who suffers from a range of medical problems; he has a psychiatric background characterised by depression and dysthymia, he suffers from epilepsy and complications arising from chronic alcohol abuse. He is diabetic and has a range of physical difficulties. He is incontinent of urine and faeces and unable to maintain his home environment or safely complete most activities of daily living without help and support from a carer. His flat had been ‘blitz cleaned’ on many occasions and many support care packages had been commissioned, but all had failed.

At the time of the hearing, CD’s “entire house from the hallway, lounge, bedroom and kitchen, including all furniture, has faecal stains”. There had been no access to the home for almost three weeks. CD was disinclined to change his ways and was not willing to move to a safe environment and be supported with his personal care.

Mr Justice Cobb said the local authority had been quite right to bring this issue before the court. CD was unrepresented but the Official Solicitor had agreed to act for him. Orders were sought to enable the local authority to gain access to CD’s accommodation, provide appropriate care for him and make his accommodation safe for human habitation.

The application was brought under the inherent jurisdiction but Mr Justice Cobb explored whether the orders should actually be made under the MCA. He held that CD was a vulnerable adult and he could make the orders under the inherent jurisdiction. However, there was also reason to believe CD lacked capacity to make decisions about his care. Therefore, he concluded that it was best to make the orders under the MCA. This was because where there is a statutory route, it is more appropriate to use it.

In PR, Mr Justice Cobb expressed caution about using injunctive relief under the inherent jurisdiction against a vulnerable adult. This was because it is not appropriate to hold a vulnerable adult in contempt of court for breaching an injunction which is there to protect them.  In the case of CD, Mr Justice Cobb chose not to use the inherent jurisdiction. If these orders had been made under the inherent jurisdiction and CD had refused entry to his home, the only possible remedy would have been to hold him in contempt of court for frustrating the effect of the order. As in the case of PR, this does not sit quite right when the aim is to try and help a vulnerable adult not punish them.

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