DL v A Local Authority & Ors

The High Court’s inherent jurisdiction survives the Mental Capacity Act 2005. It may protect an adult whose decision-making is compromised by constraint, coercion, undue influence or another vitiating factor, even though the adult does not lack mental capacity within section 2(1).

The jurisdiction promotes autonomy by facilitating a free and genuine decision. It does not permit intervention merely because an adult’s decision appears unwise, irrational or unconventional. Where the statutory scheme applies precisely, it should be used instead. Any inherent-jurisdiction order must be lawful, necessary and proportionate, and must not undermine Parliament’s scheme. The court’s powers are not confined to short-term relief creating space for a decision.

A local authority began proceedings to protect an elderly married couple from alleged aggression, coercion and undue influence by their adult son. For the preliminary issue, the couple were assumed to possess capacity within section 2(1) of the Mental Capacity Act 2005, although their ability to make free decisions was said to have been compromised.

Theis J held in [2011] EWHC 1022 (Fam) that the High Court’s inherent jurisdiction had survived the 2005 Act and could protect an adult whose capacity or freedom of decision was impaired by external forces. The son appealed. The central issue was whether the statutory scheme had displaced that jurisdiction in relation to adults who fell outside the Act but were unable, or reasonably believed to be unable, to make a free and genuine decision.

1. Appeal dismissed unanimously. The High Court’s inherent jurisdiction to protect adults survived the enactment of the Mental Capacity Act 2005. Parliament had neither expressly nor impliedly removed it. The Act created a comprehensive scheme within its own field, but section 2(1) confined that field to inability caused by an impairment of, or disturbance in, the functioning of the mind or brain.

2. McFarlane LJ held that the jurisdiction extended to adults whose ability to decide had been compromised by matters outside the statutory definition. It could apply where an adult was under constraint, subject to coercion or undue influence, deprived of the capacity to make the relevant decision, disabled from making a free choice, or unable to give or express real and genuine consent. The class should not be exhaustively defined.

3. The jurisdiction was protective and autonomy-enhancing. Its purpose was to liberate decision-making from external pressure, not to impose the court’s view of an adult’s welfare. An adult could not be subjected to public intervention merely because a proposed decision or tolerated situation appeared unwise, irrational, eccentric or unconventional.

4. The court should first examine the statutory scheme. Where a case fell precisely within the 2005 Act and could be dealt with under it, there was no room or need for the inherent jurisdiction. Outside that field, the jurisdiction remained available as a safety net, provided its exercise did not undermine Parliament’s will.

5. Any intervention had to be lawful, necessary and proportionate. This requirement protected the adult’s rights under article 8 of the European Convention on Human Rights. A facilitative approach, enabling an unencumbered decision free from pressure or restraint, was especially appropriate.

6. The inherent powers were not confined to interim orders giving an adult temporary space in which to decide. Although such relief might be suitable in a particular case, longer or different protective orders could be available where justified. The factual basis and appropriate relief remained for Theis J to determine.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 253, dismissed the son’s appeal unanimously and upheld the existence and scope of the High Court’s inherent jurisdiction.
2. High Court, Family Division: Theis J held in [2011] EWHC 1022 (Fam) that the inherent jurisdiction survived the Mental Capacity Act 2005 and could potentially protect the adults concerned. The substantive facts and relief remained to be determined.