Capacity thresholds and the inherent jurisdiction

In a recently reported case the High Court adopted the view that it was too “arbitrary” to use the inherent jurisdiction to achieve a deprivation of liberty, while accepting that there were “strong judicial dicta” that say it should be used for “facilitative rather than dictatorial” reasons.

This decision follows a long line of cases about young people and adults and the use of the inherent jurisdiction to authorise a deprivation of liberty but who do not fall within the categories of incapacitated persons covered by the Mental Capacity Act 2005.

DN, aged 25, suffers from a severe form of autism, together with an anxiety disorder, and traits of an emotionally unstable personality disorder. He is “not significantly intellectually impaired, and he is capable of clear thinking”.  He has previously been treated for his mental ill-health under the Mental Health Act and is in receipt of after-care support under section 117 of the Act.

According to the expert evidence of a consultant forensic psychiatrist, on occasions, DN experiences “meltdowns” which tend to occur when he is particularly stressed, anxious and/or aroused. At the point of a meltdown DN becomes overloaded and over-stimulated with information. It is at that point, that DN does not then have the capacity to manage his behaviours and he “loses the ability to think rationally and weigh up his decisions”.

DN had been prosecuted for a number of offences, mainly of a public order nature. He was sentenced to a community order with a two-year Mental Health Treatment Requirement under section 207 Criminal Justice Act 2003. At the time of the sentence, DN had been bailed to Stamford House a supported living accommodation. But the regime at Stamford House went further than ‘restricting’ DN of his liberty and, objectively, features of the regime ‘deprived’ him of his liberty, contrary to his rights under Article 5 European Court of Human Rights.

The applicants, Wakefield Metropolitan District Council and NHS Wakefield CCG, took the view that DN was unable to give his consent to his care regime at Stamford House, as his decision-making powers were eroded by his vulnerabilities.

An application was made seeking:

1. the court’s approval under the inherent jurisdiction for ensuring that DN’s need for care and support was delivered under a lawful framework; and
2. authorisation for the deprivation of DN’s liberty for as long as he remains/remained at Stamford House.

By the time of the hearing, the parties agreed that, on the facts, the inherent jurisdiction did not apply and therefore the court could not authorise a deprivation of DN’s liberty. However the applicants still sought the court’s authorisation of the interference in his Article 5 rights caused by the arrangements for his care.

The judge spent time on the telephone with DN in readiness for the hearing.

The decision

1. DN is not a person of ‘unsound mind’. While he is vulnerable in some ways and contexts, the court did not find that his decision-making in relation to Stamford house had been “vitiated” that he should be regarded as requiring the intervention of the High Court under its inherent jurisdiction. DN was able to consent to his residence and care arrangements freely, although the court accepted that DN faced a ‘stark’ choice in the criminal court when presented with a custodial sentence if he had not accepted the community order.
2. Anticipatory declarations under section 15/16 Mental Capacity Act would provide the proper legal framework for temporary periods of deprivation of liberty ensuring they are properly authorised for those occasions when DN loses capacity to make decisions about residence and care when he has a ‘meltdown’.

What to take away

In short, the court did not accept that the inherent jurisdiction should be used to deprive a capacitous adult of their liberty. The court did not regard as binding the recent decision in Hertfordshire County Council v AB. It may be that the Hertfordshire case can ‘simply’ be distinguished on its facts. That said, we have a range of decisions on the test and application of the inherent jurisdiction of the High Court to vulnerable and capacitous persons. Arguably those at the margins of the MCA pose some of the most difficult problems for practitioners, giving rise to some extremely acute tensions between the principles of autonomy and protection.