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Can the Court Protect Vulnerable Adults who have Capacity?

Moira Sofaer, barrister and mediator, of Goldsmith Chambers, considers the protection afforded by the courts to vulnerable adults who are outside the ambit of the Mental Capacity Act 2005 in the light of the Court of Appeal’s judgment in DL.

Moira Sofaer, barrister, Goldsmith Chambers










Moira Sofaer, barrister and mediator, Goldsmith Chambers

Between active decision makers and those certified as lacking mental capacity is a category of vulnerable adults who are open to exploitation.  In former years they were protected by coming within the inherent jurisdiction of the High Court.  Has the Mental Capacity Act (MCA) 2005 ousted its powers?  In DL v A Local Authority and Others [2012] EWCA Civ 253 the Court of Appeal was asked to determine whether this group was beyond its remit and fell into a gap which meant they had to fend for themselves.

DL was in his fifties and lived with his elderly parents, ML and GRL, aged 85 and 90, who both had capacity when the case began. The parents owned their house but the local authority had concerns about the living arrangements.  DL was alleged to have been aggressive and physically violent to his parents. The allegations included assaults, verbal threats, controlling where his parents could move in the house, and who could visit them, including health care professionals providing care and support.  There were reports that he was trying to coerce his father into transferring the house to him and was pressurising his parents to agree to his mother being placed in residential care against her wishes. It was also said that he was preventing them from leaving the house for visits.

The local authority brought proceedings to protect the parents from DL.

Initially interim ex parte injunctions were made by President of the Family Division, Sir Nicholas Wall, restraining DL from:

  1. Assaulting or threatening GRL or ML
  2. Preventing GRL or ML from having contact with friends and family
  3. Seeking to persuade or coerce GRL into transferring ownership of the family home
  4. Seeking to coerce or persuade ML into moving into a care or residential home
  5. Engaging in behaviour towards GRL or ML that was degrading or coercive including but not limited to stipulating which rooms in the house they could use, preventing them from using household appliances, including the washing machine. Punishing them for example  by making GRL write lines;  shouting or otherwise behaving in an aggressive or intimidating manner towards them
  6. Giving orders to care staff
  7. Interfering in the care and support of ML
  8. Refusing access to health and social care professionals
  9. Behaving in an aggressive and/or confrontational manner to care staff and managers.

The Official Solicitor was invited to investigate and appointed an independent social worker to report.  The conclusion was that the parents were unduly influenced by DL to the extent that their capacity to make balanced and considered decisions was prevented and compromised. Although they did not lack capacity they were not free to make decisions about their lifestyle, living arrangements, personal or inter personal relationships.

The key issue was whether the court's inherent jurisdiction survived the Mental Capacity Act 2005 and could be used to put in place protective measures for vulnerable adults who "are believed to be deprived of the capacity to make the relevant decision or disabled from making a free choice or genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor."

At first instance, before Theis J, the local authority argued that the ECHR and HRA 1998 required the court to retain its inherent jurisdiction.  This was opposed by DL who maintained that those outside the MCA 2005 –  because they were not incapable – were beyond the ambit of the court's protection. 

Theis J reviewed the cases prior to the MCA 2005 before deciding that the court's powers of protection survive under the inherent jurisdiction.   Although unwise and eccentric decisions alone did not justify the intervention of the state, in this family the parent's ability to make decisions had been severely compromised by DL's domination. Theis J decided they were unable to make decisions freely because of DL's conduct. The court had to step into protect them as they seemed unable to protect themselves and to do anything else would have been supporting DL in his oppressive behaviour.

Before the Court of Appeal DL submitted that by upholding the High Court's decision, the court would be compromising the right of autonomy enjoyed by every individual in a democratic society. Intervention would lead to the erosion of freedom, and the court preventing decisions by the capable which were thought to be unwise.  The fact that ML was elderly and chose to live in a situation which may put her at risk of harm or exploitation did not give the court the right to intervene. Further the MCA 2005 provided an exhaustive test for capacity and set absolute and clear limits on the circumstances where it was appropriate for the court to intervene. The common law had been displaced and should not go behind the statute.

The local authority submitted that the MCA 2005 makes no express provision limiting or extinguishing the use of inherent jurisdiction and in matters outside its ambit the inherent jurisdiction remained.

The Court of Appeal rejected the argument that retaining jurisdiction would threaten the autonomy of every individual. It was to be used for those whose decision-making ability had been compromised by matters not covered by the MCA because they are

a) Under constraint
b) Subject to coercion or undue influence or
c) For some other reason deprived of their capacity to make the relevant decision or disabled from making a free choice and unable to give a real and genuine consent.

In this case the aim was to enhance or liberate the individuals' compromised autonomy.

Although the MCA 2005 made no express reference to the inherent jurisdiction there was nothing in the Act to restrict it being used as a safety net. McFarlane LJ added that there was a public policy justification to protect the will of a vulnerable adult from being overborne. This group was not easy to define or delineate. The common law, he said, has the advantage that it is able to adapt and develop its jurisdiction on a case by case basis to determine who requires protection in the borderline capacity category.

The balancing act between autonomy and protection is a recurring theme. Once the facts of what appeared to amount to abuse emerged, it was unlikely the court would abandon vulnerable adults, leaving them exposed to exploitation. DL's argument that only those certified as lacking capacity should be protected was ambitious. In practical terms borderline capacity adults can drift in and out of capacity. In this case by the time the appeal was heard one of the parents had become incapacitated and came under the MCA 2005 due to deterioration of health during the time it took for the case to come on. DL's position would have left one parent within and one outside the court's protection.

The Court of Appeal would not be bound by statutes and precedents leaving the vulnerable at risk. Upholding the inherent jurisdiction allows flexibility in future trials to determine on the specific facts in which adults' lives it will intervene.  

27/9/12