Wakefield Metropolitan District Council & Anor v DN & Anor

The inherent jurisdiction may protect a vulnerable adult whose ability to make a relevant decision has been compromised by constraint, coercion, undue influence or another disabling circumstance. Vulnerability is fact-sensitive and does not, by itself, justify intervention. The jurisdiction is principally facilitative and cannot ordinarily authorise deprivation of a capacitous adult’s liberty. A community order with a mental health treatment requirement does not, without more, make the offender’s willingness to comply involuntary merely because the alternative may be custody. Where capacity is lost temporarily during episodes of heightened arousal, anticipatory declarations under sections 15 and 16 of the Mental Capacity Act 2005 may provide a lawful framework for care and treatment.

The local authority and clinical commissioning group applied under the inherent jurisdiction concerning DN, an autistic adult with anxiety and episodes of severe emotional dysregulation. DN lived in supported accommodation under a community order imposing a mental health treatment requirement pursuant to section 207 of the Criminal Justice Act 2003. The regime objectively deprived him of liberty, although the sentencing framework authorised restriction only.

The applicants sought authorisation of the placement and deprivation of liberty, asserting that DN was vulnerable and unable to give free consent. The respondents contended that he had capacity and had chosen the placement freely. The issues were whether the inherent jurisdiction applied, whether it could authorise the deprivation, and whether anticipatory declarations could be made for episodes in which DN temporarily lacked capacity.

1. The inherent jurisdiction. Whether an adult is vulnerable for the purposes of the inherent jurisdiction is essentially a question of fact, informed where appropriate by expert evidence. DN was vulnerable in some respects, but his decision-making about residence and care had not been vitiated or overborne. He understood the available choices, could identify features of the regime he accepted and rejected, and had expressed willingness to comply freely.

2. The fact that a person with mental ill-health faces a stark choice between custody and a community order with a mental health treatment requirement does not, without more, establish coercion, constraint or another disabling circumstance. Such a conclusion would undermine the sentencing scheme, which contemplates community orders as alternatives to custody. Buzadji v Republic of Moldova did not assist because DN’s choice was between imprisonment and restriction of liberty, rather than between two forms of detention.

3. Deprivation of liberty. The inherent jurisdiction could not properly be used on these facts to authorise DN’s deprivation of liberty. The procedural deficiencies identified in HL v United Kingdom supported that conclusion. Re PS did not establish a wider power; properly read, it required evidence of incapacity or unsoundness of mind for detention of the relevant kind.

4. The court declined to follow the approach in Hertfordshire County Council v AB, a decision of a judge of coordinate jurisdiction, insofar as it authorised deprivation of a capacitous adult’s liberty under an extended inherent jurisdiction. The facts and arguments in that case differed, and it was not binding.

5. Anticipatory declarations. During a meltdown DN was unable to use and weigh information relevant to care and treatment decisions. The court therefore proposed declarations under sections 15 and 16 of the Mental Capacity Act 2005 that he had capacity except during such episodes, when care and treatment under the care plan would be in his best interests. Any interference with liberty had to be the minimum necessary and reasonable and proportionate steps had to be taken to minimise distress and preserve dignity.

6. The application for relief under the inherent jurisdiction was rejected. The parties were required urgently to revise the regime so that DN was free to leave, and the applicants could not rely on the court’s authority for existing restrictions on contact or residence.