In re F (Adult: Court’s Jurisdiction)

The High Court may invoke the common law doctrine of necessity to determine the best interests of an adult who lacks decision-making capacity where a serious justiciable dispute requires resolution and no practicable alternative exists. The statutory guardianship regime under the Mental Health Act 1983 does not exclude that jurisdiction because it does not exhaustively regulate the everyday care of incapable adults.

The court may declare where the adult should live, regulate contact and sanction necessary restraint. The jurisdiction is exercised conservatively, case by case, and does not recreate a general parens patriae jurisdiction. Any restriction must serve the adult’s welfare and comply with the safeguards for liberty and family life.

An 18-year-old woman lacked capacity to decide where she should live. A local authority alleged that returning to her mother would expose her to serious harm. It sought declarations that she should remain in local authority accommodation and that her family contact should be restricted and supervised.

A previous guardianship order had been set aside because she did not satisfy the criteria in the Mental Health Act 1983. Wardship ceased when she attained majority. Johnson J nevertheless held that the High Court had jurisdiction to entertain the application for declaratory relief and permitted the mother to appeal.

The central issue was whether the common law doctrine of necessity permitted the High Court to determine the woman’s best interests, notwithstanding the restricted statutory guardianship regime and the potentially coercive effect of the declarations sought.

1. Appeal dismissed unanimously. The President, Thorpe LJ and Sedley LJ agreed that the High Court had jurisdiction to investigate the adult’s best interests and, if necessary, grant declaratory relief.

2. There was a serious justiciable issue. The adult could not decide where she should live, the competing carers’ positions were irreconcilable, and the assumed facts disclosed a substantial risk of harm. Courts may determine genuine controversies about the best interests of a person who cannot decide for herself, particularly where an independent tribunal is needed to guard against abuse or unjustified action.

3. The statutory regime did not exclude the common law doctrine of necessity. The guardianship provisions of the Mental Health Act 1983 were neither comprehensive nor exhaustive of the everyday care of adults lacking capacity. The restrictions introduced in 1982 and 1983 reduced the class subject to statutory guardianship but did not remove the common law basis for necessary care outside that regime. Black v Forsey was inapposite because the Scottish detention scheme considered there was intended to be exhaustive.

4. The doctrine was not confined to focal medical procedures or emergencies. It extended to treatment, ordinary care and, where no practicable alternative existed, judicial determination of residence and contact. A declaration could state that it was in the adult’s best interests to live in local authority accommodation, regulate her care and contact, and sanction such moral or physical restraint as was absolutely necessary to protect her.

5. Thorpe LJ emphasised that the decision did not restore the former parens patriae jurisdiction. It concerned the particular assumed facts, and the proposed declarations required reconsideration after the factual investigation. The jurisdiction must be developed incrementally and exercised conservatively on a case-by-case basis.

6. Sedley LJ held that any development of the common law must be principled and predictable. The substantive court had to consider articles 5 and 8 of the European Convention on Human Rights carefully. The adult’s welfare remained the single issue. Respect for family life was not a proprietary parental right and could entail positive measures protecting a vulnerable person from harm.

1. Court of Appeal: Dismissed the mother’s appeal and upheld Johnson J’s decision that the High Court had jurisdiction to investigate the adult’s best interests and consider declaratory relief.
2. High Court: Johnson J determined a preliminary issue in favour of jurisdiction and granted permission to appeal. No citation is stated.