A Local Authority v DL & Ors

The High Court’s inherent protective jurisdiction over adults survives the Mental Capacity Act 2005. It may be used where an adult outside the Act’s definition of mental incapacity is, or is reasonably believed to be, unable to make a relevant decision freely or give genuine consent because of constraint, coercion, undue influence or another vitiating factor.

The jurisdiction is not a general welfare or paternalistic power. Its primary purpose is to remove the disabling influence and enable unencumbered decision-making. Exercise of the jurisdiction requires a fact-sensitive and proportionate balance between competing rights and interests, including the adult’s expressed wishes and Article 8 rights.

A local authority sought declarations and injunctions regulating the way members of an elderly family lived together. The assumed facts included alleged aggression, violence, coercion and undue influence by their adult son, DL, towards his parents, ML and GRL. For the preliminary issue, ML and GRL were assumed to have capacity under the Mental Capacity Act 2005, although their free decision-making might have been compromised by DL’s conduct.

The local authority relied on the inherent jurisdiction recognised in A Local Authority v MA, NA and SA. DL argued that the statutory scheme was comprehensive and that any surviving jurisdiction could only facilitate an unencumbered decision. The issue was whether the jurisdiction remained available and, if so, its proper scope.

1. Jurisdiction. The protective inherent jurisdiction over adults survived implementation of the Mental Capacity Act 2005 and its Code of Practice. Parliament had not expressly excluded the jurisdiction developed before the Act, including that recognised in A Local Authority v MA, NA and SA.
2. The jurisdiction may be invoked where an adult who does not suffer from mental incapacity within section 2(1) is, or is reasonably believed to be, deprived of the capacity to make the relevant decision, unable to make a free choice, or unable to give genuine consent because of constraint, coercion, undue influence or another vitiating factor. Vulnerability is evidential and pragmatic, not itself the jurisdictional test.
3. The jurisdiction is flexible and may be used while proper inquiries are made. It can support declarations, injunctions and directions, but cannot be used to override a capacitous adult merely because others regard the decision as unwise. Its primary purpose is to create conditions in which the person can receive help free from coercion, weigh the alternatives and decide freely. Section 48 concerns interim orders pending determination of an application and does not exhaust the inherent jurisdiction.
4. Article 8 may impose positive obligations on the State to protect private and family life. Such obligations can, in principle, arise in cases involving adults within the SA category, although the intensity of the duty and proportionality of intervention depend on the circumstances. The adult’s wishes and competing Article 8 rights require careful balancing.
5. The preliminary issue was determined in favour of the local authority on jurisdiction. The parties agreed directions for the future conduct of the litigation; the substantive injunctions were not finally determined.