CD v London Borough of Croydon

The High Court may use its inherent jurisdiction to protect a vulnerable adult, including an adult who is not incapacitated under the Mental Capacity Act 2005. Vulnerability is a pragmatic and evidential concept, not a self-standing jurisdictional status. Any protective order must be necessary and proportionate and respect personal autonomy. Where there is reason to believe that a person lacks capacity, section 48 of the Act provides an appropriate basis for interim orders if the relevant matter falls within the Act and immediate intervention is in the person’s best interests. The statutory route should generally be used where it is available. Deprivation of liberty under the inherent jurisdiction requires prior judicial authorisation, evidence establishing at least a prima facie case of unsoundness of mind warranting confinement, and continuing review.

The London Borough of Croydon applied under the inherent jurisdiction for declaratory and protective relief concerning CD, a 65-year-old man with psychiatric, neurological, physical and alcohol-related problems, severe self-neglect and unsafe living conditions. CD did not attend and was not represented. The Official Solicitor acted as advocate to the court.

The parties broadly agreed a practical interim care plan. The central issue was whether the plan should be authorised under the inherent jurisdiction or under section 48 of the Mental Capacity Act 2005, pending fuller investigation of CD’s capacity and welfare.

1. The court accepted that the inherent jurisdiction may protect vulnerable adults. A person may be vulnerable without being incapacitated under the Mental Capacity Act 2005. The concept is pragmatic and evidential: vulnerability makes it more likely that the court will find an issue requiring investigation. Per Munby J in Re SA [2005] EWHC 2942, the description is indicative rather than exhaustive, and was applied to CD.

2. Inherent-jurisdiction measures must comply with the European Convention on Human Rights. They must be necessary and proportionate, with proper regard to personal autonomy. Interim protective measures may be maintained while necessary investigations are undertaken.

3. Any deprivation of liberty under the inherent jurisdiction requires prior authorisation by the court. Subject to urgency or emergency, the evidence must establish at least a prima facie case of incapacity or unsoundness of mind of a kind or degree warranting compulsory confinement. The order must also be subject to review. The court treated the qualification identified by Munby J in Re PS [2007] EWHC 623 as important, although the issue did not arise for decision.

4. For an interim order under section 48 of the Mental Capacity Act 2005, the court must have reason to believe that P lacks capacity in relation to the matter, that the matter falls within the Act’s powers, and that it is in P’s best interests to make the order or give directions without delay. Capacity must be assessed in accordance with sections 1 to 3, including the presumption of capacity and the prohibition on treating an unwise decision as proof of incapacity.

5. On the evidence, CD’s psychiatric history, chronic alcohol abuse, fluctuating functioning, self-neglect and recent refusal of care gave reason to believe that he lacked capacity concerning personal care. Immediate access to his accommodation was in his best interests to provide care and make the premises safe. The order was therefore made under section 48. The inherent jurisdiction remained an alternative route because CD was also a vulnerable adult.