The Court of Appeal ruled yesterday (DL v A Local Authority & Ors  EWCA Civ 253 (28 March 2012)) on the possible scope of adult safeguarding. An elderly couple had chosen not to take steps to protect themselves from their potentially violent and aggressive son. Could the local authority safeguard them?
Here is the ruling in a nutshell: local authorities can intervene to protect people who have mental capacity to decide for themselves and choose not to be safeguarded, but only if they lack capacity to decide for themselves in some other way.
In one sense the Court has said nothing new; but in another it has said something controversial.
Nothing new, because it upheld judgements made below (i.e. by the High Court) and therefore doesn’t change anything, even though the judgement is a welcome expansion and elucidation of the law in this area. Something controversial because as the President of the Family Division said at an earlier stage in this litigation,
I am of the view that the present case involves an extension of the inherent jurisdiction… [paragraph 20]
What’s it all about?
Can we intervene to protect an adult who chooses not to protect themselves from their grown up child, because they want to protect their relationship with their child?
The argument for the answer ‘Yes’ is that we should protect people from harm (or possibly significant harm, see my blog earlier this week).
The argument for the answer ‘No’ is that an adult with capacity has the right to make an unwise decision, including a decision to prioritise their relationship with their child over their own well-being.
A little legal glossary and history
Courts under common law since ancient times have inherent powers to order people about. When Parliament passes legislation, the legislation takes over from the common law. Sometimes – as here – there is an argument about whether there is any common law left or not.
So the inherent jurisdiction is the power of the Court to make Orders not provided for by Parliament.
The relevant legislation being considered here was the Mental Capacity Act. The Act defines capacity with reference to the ability to make a decision and to impairment of, or a disturbance in the functioning of, the mind or brain. But this couple had capacity by that definition.
The court says there is another type of capacity and incapacity, which may arise as follows:
i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint… It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.
ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances… where a vulnerable adult’s capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add… that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may… be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.
iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult’s understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.
So lack of capacity is of two types: there is mental incapacity; and there is incapacity which derives from other circumstances, especially by what other people do to you.
It is important to keep in mind this second type of incapacity because it is central to what follows, and probably to adult safeguarding in future.
So what did the Court say?
The court says a local authority can intervene to protect people who choose not to protect themselves.
The court says the Mental Capacity Act has not got rid of the inherent jurisdiction.
Nor does the court seem to agree with the observation I opened with that the case involves “an extension of the inherent jurisdiction”, even though that view was expressed by another judge of the Court of Appeal.
Nor does the court seem to think that imposing protective Orders on people who choose not to seek protective Orders is overriding their personal autonomy:
I do not accept that the jurisdiction… is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is… targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the Mental Capacity Act 2005.
In short, therefore, people can lack capacity, and can be safeguarded, not only if they lack capacity under the Mental Capacity Act, but also if they lack capacity in some other way.