AB (Inherent Jurisdiction Deprivation of Liberty)

The High Court may extend its inherent jurisdiction to authorise a capacitous vulnerable adult’s deprivation of liberty where existing legislation provides no lawful route, provided the extension is principled, necessary and exercised cautiously.

The jurisdiction may be used to fill a legislative void created by the operation of the statutory scheme and binding authority. The court must consider the circumstances and applicable law in the round, protect the adult’s welfare and the public, and provide regular review. The authorisation should be time-limited and any material increase in restriction should require a further application.

Hertfordshire County Council applied under the inherent jurisdiction for authority to deprive AB, a restricted mental health patient, of his liberty in the community. AB had been conditionally discharged under section 73 of the Mental Health Act 1983. His care and risk management plan required continuous supervision and other restrictions which objectively amounted to a deprivation of liberty. AB had capacity to consent to those arrangements and did consent.

The application followed The Secretary of State for Justice v MM [2017] EWCA Civ. 194, subsequently upheld by the Supreme Court in [2018] UKSC 60, which established that consent could not make such conditions lawful. The central issue was whether, and if so whether, the inherent jurisdiction should be extended to regularise AB’s care plan.

1. The application was granted. The court authorised, for twelve months, the deprivation of liberty arising from AB’s community care plan.

2. The existing inherent jurisdiction protecting vulnerable adults is not confined to previously recognised categories. However, its extension must be principled and cautious. The court must avoid an indiscriminate expansion of the jurisdiction and must consider whether a remedy is imperative rather than merely desirable, together with the wider consequences of developing the law.

3. AB was a vulnerable adult for whom protection was appropriate. His case was not sufficiently analogous to DL v A Local Authority [2012] EWCA Civ. 253 to justify use of the existing vulnerable-adult jurisdiction. The circumstances instead justified a principled extension in accordance with Anderson v Spencer [2018] EWCA Civ. 100.

4. The Court of Appeal’s decision in The Secretary of State for Justice v MM [2017] EWCA Civ. 194, upheld by the Supreme Court, meant that AB’s consent could not lawfully authorise the objective deprivation of liberty inherent in his care plan. Without authorisation, the practical alternatives were either a substantial reduction in supervision, exposing AB and the public to increased risk, or a return to hospital confinement.

5. In that legislative void, and having regard to AB’s welfare, the protection of the public, the carefully designed care plan and the absence of another effective remedy, the inherent jurisdiction should be extended to regularise the position. The authorisation required regular court review. Any increase in the restrictions required a further application, and an application had to be made before expiry of the twelve-month authorisation.