The Court of Protection team at 39 Essex Chambers analyse a bid to appeal an interim judgment on the inherent jurisdiction and the extent to which unwise decisions made by capacitous adults can and should be overridden by the courts.
In A Local Authority v BF  EWCA Civ 2962 Court of Appeal (Civil Division) (Baker LJ) BF was a 97-year-old man who sufferd from diabetes, osteoarthritis and was blind in both eyes. At the time of the appeal he was residing in residential care against his wishes, rather than at home with his son KF. The history of the case is long and involved, but in short BF lived in a bungalow with his son KF following the death of his wife. KF suffered with drug and alcohol addiction and was noted to intimidate visiting care staff such that all ultimately refused to provide BF with care at home. Over the course of two years of proceedings initiated by the local authority, BF and KF had moved out of and back into BF’s property while extensive renovations were carried out to return it to habitability after it fell into squalor.
The appeal arose out of events in late 2018 when, having returned home to live with KF in his renovated bungalow, BF once more contacted the local authority and was discovered in abject squalor, partially clothed and having neither eaten nor drunk for a number of days. BF was removed by the local authority into respite care, who were concerned that he had lost capacity to make decisions about his residence. An ex parte order was granted by Francis J, restraining BF from returning home and requiring him to live in residential care provided by the local authority pending further order of the court. In October of 2018 BF agreed to abide by the court’s order; he maintained that he was content not to return home, not to live with KF, and to submit to a capacity assessment. The local authority in due course prepared a notice terminating KF’s licence to reside at BF’s property.
A capacity report by a consultant psychiatrist provided in November 2018 confirmed that BF had the requisite capacity to make decisions on where he should live including whether KF should live at the property. The matter was returned urgently to court before Hayden J as the urgent applications judge. Hayden J heard evidence and submissions on capacity and enabled BF to participate in proceedings by telephone. BF reiterated that he wished to return home to his bungalow to live with KF. The local authority accepted the evidence that BJ had capacity in the material domains, and applied to lift the injunction. However, Hayden J declined the application and extended the injunction until further order, binding BF not to live or reside in his bungalow, not to live with his son KF and to reside at a care home specified by the local authority. Hayden J held that:
- …It was submitted that once an individual had capacity the inherent jurisdiction had no reach. The Court of Appeal [in Re DL] roundly and unequivocally rejected that and did not attempt to circumscribe the scope/ambit of the inherent jurisdiction. Whether it extends to the kind of protection that BF needs is moot…It strikes me as an important application of the law to the facts of this case. It requires an analysis of the scope of the law to impose welfare decisions on vulnerable adults who otherwise have capacity.
- I am driven to adjourn this application so I can receive full argument on this point. All parties, not just BF and the local authority, are entitled to nothing less. In the meantime, and on an interim basis, BF should remain where he is. I know he is eager to go home and I do not discount the possibility that that he might be able to as a result of my final decision. At the moment and in the present circumstances, I am satisfied that the inherent jurisdiction reaches that far."
This decision was appealed by both the local authority and BF who maintained inter alia that the said order was in breach of BF’s Article 5 rights.
Baker LJ rehearsed the law on the survival of the inherent jurisdiction since the coming into force of the Mental Capacity Act 2005, summarising the position (at paragraph 23) thus:
(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.
Baker LJ upheld Hayden J’s decision and refused the appeal on the basis that:
- BF was a vulnerable adult by virtue of his age, blindness and the trauma of having lived in squalid and dangerous conditions his relationship with his son appeared to have “elements of the insidious, persuasive undue influence” which would bring it within the jurisdiction of the inherent jurisdiction as per Re SA; BF was unquestionably in need of protection for a variety of reasons (para 32);
- expert evidence of his capacity notwithstanding, there was prima facie evidence of an unsound mind by reason of his infirmity and the other “extraneous circumstances” identified, and “manifestly,” the test of “unsound mind” is different from the test of capacity under the Mental Capacity Act;
- in an emergency situation someone may be deprived of their liberty in the absence of medical evidence of mental disorder without infringing Article 5; and
- overall, that:
in circumstances where someone is found not to be of unsound mind, they cannot, of course, be detained in circumstances which amount to a deprivation of a liberty, but a move home in these circumstances is something which requires very careful planning and support. This is a crucial component of the protection afforded by the inherent jurisdiction and, in my judgment, entirely consistent with BF's overall human rights (paragraph 35)
He further held that decision of this nature should not be made summarily and that Hayden J was thus entirely justified in adjourning the matter for some weeks pending further argument.
On one view, this was a helpful confirmation  that deprivation of liberty in this context cannot take place in the absence of unsoundness of mind  (a term which has caused upset in the context of the Mental Capacity (Amendment) Bill but derives from Article 5(1)(e)).
However, many might find it surprising that it would be possible for a court to direct (even if only temporarily) that an individual with capacity be prevented from returning to their own home, be prevented from living with a person they chose to, and be required to live at a place selected for them by someone else in circumstances amounting to a deprivation of their liberty.
At that point, one might ask, why bother with the (sometimes complicated) exercise of assessing capacity? Why not simply proceed on the basis of the necessity and proportionality of securing the protection of a vulnerable person (and, where a deprivation of liberty might result, providing evidence of “mental disorder,” a very expansive term).
The case might therefore usefully stand as an example to test how one feels about removing mental capacity from the equation (as we have been urged to by the CRPD Committee). And/or it may stand as a reminder of why we might want to give some statutory steer to judges exercising this wide inherent jurisdiction so that they (and society) can be clear as to how it should be deployed. By way of example of such a steer, we could do worse than look at the Vulnerable Adults Act that recently came into force in Singapore.
The case also stands as a clear reminder of the inquisitorial nature of the jurisdiction exercised by the courts in this arena. Perhaps unusually, both the local authority and the person before Hayden J were arguing for the same outcome – a finding of capacity and the grant of relief to enable the person to return home, but Hayden J took (and was found to be have been entitled to take) an entirely different course, at least on an interim basis. We will await the final judgment from Hayden J with interest.
This article was written by the Court of Protection team at 39 Essex Chambers.
 Although not, strictly, a precedent as solely a decision on an application for permission to appeal.
 There are other grounds upon which it could be justified in the exhaustive list contained in Article 5(1), but none of them could apply here.