The Court of Appeal ruled yesterday on the scope for adult safeguarding

The Court of Appeal ruled yesterday (DL v A Local Authority & Ors [2012] 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.

Commentary

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.

(A Local Authority v MA & Ors [2005] EWHC 2942 (Fam) (15 December 2005) at paragraph 77)

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.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

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18 thoughts on “The Court of Appeal ruled yesterday on the scope for adult safeguarding

  1. Thanks for the update. Is’nt this known as ‘situational capacity’ as outlined by Justice Theis and Justice Mumby?

    • Absolutely it is. This is the appeal from Theis J’s decision in the High Court, and challenging Munby J’s decision in SA. So this is the next court up commenting on what Theis and Munby said.

  2. “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”

    I think it is important to clarify that all adults can be safeguarded whether they lack capacity or not. Workers/students can confused by being absolute, ie if the person lacks mental capacity, we can’t do anything. The key with this decision is that the couple who had mental capacity decided against intervention but this decision was over-ridden. If the couple did want assistance, their mental capacity would not have been an issue. Your article makes this explicit until the final paragraph.

    • Sorry Matt – you are right in what I think you are saying, which is that any adult who has capacity can choose to ‘be safeguarded’, as adult safeguarding is available to all not only available to those who lack capacity.

      But I wonder if you have fallen into the same error of “confusing by being absolute” when you write, “I think it is important to clarify that all adults can be safeguarded whether they lack capacity or not”. This was a case about people who choose not to be safeguarded. We do not as social workers have an unlimited right to safeguard people who choose not to be safeguarded.

    • Not quite sure about,
      “ie if the person lacks mental capacity, we can’t do anything”
      I always thought that if we could demonstrate that the person lacked mental capacity then we could act in their best interest

      • We’re all confusing ourselves, I fear! I had assumed this was simply a typo by Matt G and he meant if people *have* mental capacity we can’t do anything, and intended to highlight that this wasn’t so if such people consented to being safeguarded.

  3. I understand the points raised here about situational capacity (I think) but a couple of things puzzle me. I know about the capacity test in the MCA but what test is applied to incapacity which derives from other circumstances and who applies it?
    Also, as the individual who it applies to (who has capacity under MCA) how can I challenge that?
    Lastly, as a practitioner, how can I force intervention on an adult who has capacity (under the MCA) and refuses to be safeguarded?

    I am not disputing the premis that people can be constrained, coerced or unduly influenced in the terms outlined above but how is that balnaced against my autonomy as an adult with capacity????

    PS. Not trying gto be awkward or dumb (honest), just really keen to understand better.

    • Bill –

      I completely understand your observations, and indeed in reporting the outcome of a case I largely avoided commenting on the troubling practice issues it throws up – perhaps another blog sometime.

      I did observe in a twitter exchange that my first reaction to Wall LJ’s original judgement earlier on was “why are you extending the inherent jurisdiction to override the unwise decisions of capacitous adults”, and I think you touch on this. Mithran at Community Care also queried in his resume of my blog what was meant by intervention, and you touch on this also.

      I think two observations by way of clarification may be helpful:

      1. This about what a court can do, not what a social worker can do

      A court, whether under the inherent jurisdiction or a statutory jurisdiction certainly has the power to override people’s wishes; it doesn’t follow that a social worker does. An analogy might be taking a child into care. A social worker may do so voluntarily i.e. with consent. But faced with the absence of consent, the social worker is forced into a different role, that of persuading a court to make the Order deemed necessary. So here we could safeguard with consent, but in its absence must fall back on persuading a court to make the Order deemed necessary.

      From which it also follows that a social worker’s powers are different depending on whether we are relying on mental capacity issues or other types of capacity issues. Under the MCA we certainly don’t need to apply to a court all the time, but to invoke the inherent jurisdiction we do.

      2. How can someone object?

      Actually, this follows from the fact that the inherent jurisdiction is a court’s power not a social worker’s power. Someone who doesn’t want to be safeguarded can object simply by placing their objections before the court.

      And although I don’t think this has been said anywhere, I think there is an important unspoken subtext about what would happen. I do not think the court would make an Order under the inherent jurisdiction in someone’s best interests in the face of their reasoned opposition to such an Order. I think the unspoken assumption is, “the fact that you are not coming to the court to object to the proposed Order lends credence to the belief that you lack situational capacity to do so – are under duress or whatever – and therefore legitimacy to our safeguarding action”.

      Which also helps to reassure me – a little, since I can see flaws in this – that the court is right to say this is no wholesale attack on the personal autonomy of the whole adult population.

      Again, an analogy. I suspect that if SA, the woman protected from involuntary marriage in Munby J’s original case came to court by any means to say, “this is someone I want to marry, it is my own free choice” then the court – having decided that she has the capacity to marry – would not stand in her way.

      Hope this helps!

  4. How, do we feel that this situation relate to health care.
    I refer to cases where people have been assessed as having capacity but choose to ignore medical advice even though this will lead to their death. In the past these situation were considered to be cases of unwise decisions, can we now intervene to protect these people who choose not to protect themselves if we feel they are incapable of making wise decisions

    • The principles apply to health care as well as social care. But they are not a mandate to “intervene to protect these people who choose not to protect themselves if we feel they are incapable of making wise decisions”. Rather, if health professionals believe that a person’s choosing to ignore medical advice even though this will lead to their death results from a lack of situational capacity to make a decision, they could apply to the court.

      So we can’t start intervening to compusorily stop people smoking (which would seem to fit your scenario). But if we feel a vulnerable person doesn’t want to inconvenience the relatives and is prepared to die to suit them, the NHS Trust may well apply to court.

      • Thanks for the clarification, your reference concerning compelling people to stop smoking is very interesting, I fully believe that as soon as the healthcare costs associated with treating smoking related diseases outweighs the revenue generated by cigarettes there will be compulsion in the form of prohibition but that is a side issue.
        The cases I was referring to are along the lines of people who have severely life limiting physical conditions with a prognosis of five to ten years who seem to have decided to shorten their lives by ignoring advice re issues such a relieving pressure to their skin making them prone to bed sores and infections.
        If these people are using services and demand to be placed in wheelchairs and insist upon staying there for many hours despite rapidly deteriorating pressure ulcers, and they have been assessed as having the capacity to make that decision, can the healthcare providers refuse to hoist them into the wheelchair.
        I hope this is not a silly question it just seems difficult to get a handle on these things sometimes and then obvious solutions don’t seem so obvious due to the surrounding confusion, if you know what I mean.
        Kind Regards
        j

  5. Local Authorities have always have the power to intervene in safeguarding cases where the individual has mental capacity, but the general consensus is that they are making ‘an unwise decision’…for example The National Assistance Act 1948 enables us to remove people to a place of safety. Paramedics, the police, and the fire service often overide an individual’s decision not to be taken to hospital for treatment even when it is evident that they have mental capacity to make a decision to the contrary. I am reading this case as you can only make a well informed decision if you have access to all relevant information with which to make that decision.

    • The mental capacity act is a well intentioned tool but I believe it has led to a disproportionate level of fear and trepidation. Since the advent of MCA I have witnessed, several paramedics saying things like, “I can’t force you to go to hospital or take you without your consent, all I can do is advise. many service providers are now fearful of not upholding unwise decisions due to the confusing raft of legislation.
      In my opinion we still have a duty to care and a duty to protect I am yet to find myself isolated or unsupported as I fulfil my perceived duty, but I can envisage a time and a scenario where I might. All I can say is thank goodness for solicitors and indemnity insurance.

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