Although the Mental Capacity Act 2005 (MCA) can be used to protect people who are vulnerable because they lack capacity to make a decision, it offers no protection to people who, though undoubtedly vulnerable, still retain their capacity. Such people will not find themselves within the embrace of the new Court of Protection, but a recent case suggests that the High Court might now be willing to step into the breach.
The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)
The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.
Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).
These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)
It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)
We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.
This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)
The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.
The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)
The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.
Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).
These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)
It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)
We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.
This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)
The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.
