PS (an adult) , Re

The inherent jurisdiction over an incapacitated or vulnerable adult is protective and broadly analogous to parens patriae. It permits declarations, injunctions, detention orders and, where appropriate, appointment of a receiver, all governed by the adult’s best interests. Detention requires prior court authorisation, evidence of a mental condition warranting confinement and adequate review at reasonable intervals. The order must comply with Article 5, including legality, non-arbitrariness, proportionality and procedural safeguards. A parallel statutory scheme, including Part VII of the Mental Health Act 1983, does not by itself oust or fetter the inherent jurisdiction. The least restrictive order necessary to protect welfare should be made.

The City of Sunderland applied under the inherent jurisdiction concerning PS, an elderly woman who lacked capacity in relation to litigation, residence, contact, care and financial affairs. The immediate issues were whether the court could authorise reasonable and proportionate measures to prevent PS being removed from a residential unit, and whether it could appoint a receiver for her income and savings notwithstanding the statutory regime under Part VII of the Mental Health Act 1983. The proceedings followed an urgent interim order by Bodey J and subsequent hearings before Munby J.

The court made and continued interim protective orders under the inherent jurisdiction.

1. Detention and protective measures. A judge exercising the inherent jurisdiction over children or incapacitated or vulnerable adults may direct placement in, and continued detention at, a specified institution. The power includes authorising reasonable force where necessary. Its exercise must nevertheless comply with Article 5 of the Convention and the Human Rights Act 1998. Articles 5(1) and 5(4) provide distinct and cumulative protections against unlawful or arbitrary detention and require effective, speedy and periodic judicial review.
2. Minimum safeguards. Unless urgency or emergency makes this impracticable, detention must be authorised by the court before it begins, on an application by the local authority. There must be at least a prima facie evidential basis that the person lacks capacity and that confinement of the proposed kind is appropriate. The order must provide for adequate review at reasonable intervals. Applying the safeguards identified in Re C (Detention: Medical Treatment) [1997] 2 FLR 180 mutatis mutandis, the court must use convincing evidence, the minimum necessary force and period of detention, specify the place and duration as far as possible, and provide liberty to apply.
3. Application to PS. The order was confined to reasonable and proportionate measures preventing PS from leaving the T unit, including perimeter security and monitoring visits. Personal restraint was unnecessary. Any extreme use of force would more likely be directed at CA if she attempted to remove PS.
4. Financial protection. Section 37 of the Supreme Court Act 1981 permitted appointment of a receiver where just and convenient. Welfare included material and financial welfare. The existence of a receiver procedure under Part VII of the Mental Health Act 1983 did not preclude the inherent jurisdiction. Separate Court of Protection proceedings would have been disproportionate given the modest sums involved. DS was therefore appointed receiver, with authority limited to collecting and applying PS’s income and managing her accounts, and CA was restrained from operating them.

The judgment concerned first-instance proceedings under the inherent jurisdiction. An urgent out-of-hours application was made to Bodey J on 9 February 2007, resulting in interim protection. The matter was then heard before Munby J on 13 February and 1 March 2007, when interim capacity and best-interests orders were made and continued.