A Local Authority v BF

The High Court’s inherent jurisdiction remains available to protect vulnerable adults notwithstanding the Mental Capacity Act 2005. A person may have statutory decision-making capacity yet remain vulnerable through constraint, coercion, undue influence or other circumstances affecting free choice. Protective orders interfering with Article 8 rights must be necessary and proportionate, with proper respect for personal autonomy. Capacity under the 2005 Act does not determine whether a person is of unsound mind for Article 5 purposes. In an emergency, interim deprivation of liberty may be lawful while the court investigates. A proposed return home may nevertheless be delayed where it requires careful planning, support and further evidence.

The local authority applied under the inherent jurisdiction concerning BF, a 97-year-old man with serious health problems who wished to return to his home and resume living with his son. The local authority considered that the condition of the property and the son’s behaviour made care provision unsafe and insufficient.

After a capacity assessment concluded that BF could decide where to live, Hayden J accepted that BF had capacity and wished to return home, but continued interim injunctions preventing his return and requiring residence in a care home pending full argument. The central issues were whether the inherent jurisdiction could protect a capacitous but vulnerable adult, and whether the interim orders were compatible with Articles 5 and 8 of the Convention.

1. Permission to appeal. Permission was refused. There was no real prospect that an appellate court would conclude that Hayden J’s time-limited interim order was wrong.
2. Scope of the inherent jurisdiction. The jurisdiction remains available notwithstanding the Mental Capacity Act 2005. It may protect vulnerable adults who fall outside the Act, and may provide additional protection where the Act does not supply the remedy sought. Vulnerability may arise from constraint, coercion, undue influence or other circumstances that impair free choice or genuine consent. BF was plainly vulnerable, with evidence of serious infirmity and possible insidious undue influence in his relationship with his son. The protection available from the local authority if he returned home was insufficient.
3. Convention requirements. Any interference with Article 8 rights must be necessary and proportionate, and the court must respect personal autonomy. The inherent jurisdiction may support deprivation of liberty only compatibly with Article 5. Capacity under the 2005 Act is distinct from the Article 5 concept of unsound mind. The judge must consider expert evidence together with all evidence directed to that question. There were prima facie grounds for considering that BF might be of unsound mind, although the issue required determination on fuller evidence.
4. Emergency and interim protection. The jurisprudence under Article 5 permits deprivation of liberty in an emergency without evidence of mental disorder. If a person is found not to be of unsound mind, detention amounting to deprivation of liberty cannot continue. That did not require BF’s immediate return home. A safe return required careful planning, support and, if necessary, further court orders. Interim protection could properly be maintained while the necessary investigations and arrangements were completed.
5. Disposition. Hayden J was entitled to adjourn the substantive decision until January and to continue the injunctions in the meantime. The decision was not a final welfare determination and had to be followed by a prompt decision on properly assembled evidence, with due regard to BF’s autonomy.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2962, Baker LJ refused permission to appeal against Hayden J’s interim orders.
2. High Court of Justice (Family Division): On 10 December 2018, Hayden J accepted that BF had capacity to decide his residence and wished to return home, but continued interim injunctions and adjourned full argument on the scope of the inherent jurisdiction. The lower-court citation is not stated in the judgment.