A Local Authority v BF  EWCA Civ 2962, Baker LJ, 1 December 2018
This decision, made on an application for permission to appeal, implies that the inherent jurisdiction of the High Court for the protection of vulnerable adults can be exercised with considerable flexibility to respond to the individual case and with wide reach. Dismissing the local authority’s application for permission to appeal against an interim order of Hayden J, Baker LJ confirmed that, in an appropriate case, orders can be made under this jurisdiction with the effect of depriving a person of their liberty. He held that this includes in respect of individuals who do not lack capacity to make the decision under the Mental Capacity Act 2005 (MCA 2005) in the relevant respect, and that, on an interim emergency basis, an order may be made on mere prima facie evidence that the individual may be of ‘unsound mind’ (within Art 5(1)(e) ECHR). The decision sets out the limiting factors to the exercise of the jurisdiction, namely that the court can only intervene where necessary and proportionate with proper regard to the personal autonomy of the individual, and Intervention may be justified as an interim protective measure while investigations are carried out. Therefore, whether and how the jurisdiction is exercised depends very much on how highly vulnerable the individual concerned would be without the court’s intervention. Nevertheless, the decision implies what many might consider to be a surprisingly wide jurisdiction.
The facts of the case
The local authority sought orders under the inherent jurisdiction for the protection of vulnerable adults in relation to BF, aged 97, who suffers from blindness in both eyes, osteoarthritis and diabetes. He lived with his son, KF. Their relationship was complex, KF having problems with alcoholism and drugs. It was alleged that KF's aggressive behaviour and the state of the property had caused 10 care agencies to be withdrawn from providing care for BF. The local authority initially sought orders restraining KF from interfering with the delivery of care and with repairs but, following alleged persistent aggression by KF and uncooperative behaviour by BF, the local authority was unable to secure a contract with any care provider willing to attend the property. It therefore sought and obtained a declaration from the court that it had done all that reasonably could be done to provide BF with care, whilst continuing to deliver one meal a day. After that, the situation deteriorated, BF having a number of hospital admissions and persistently calling the emergency care line. The local authority visited again, to find "BF sitting bare-bottomed on the wooden slats of his bed. He had no mattress or sheets. He was surrounded by flies, blood, food, faeces and clutter. He was in pain. He reported he had had nothing to eat or drink for several days. He was hallucinating". They persuaded him to go by ambulance to a care home for respite.
The local authority then issued a further application, this time on the basis that BF may now have lost mental capacity under MCA 2005, seeking an order requiring him to live at the care home whilst an assessment of his capacity was conducted. A consultant psychiatrist assessed BF, and concluded that he had capacity to decide on his living arrangements and was aware of the risks. The matter returned to court on 10 December 2018, before Hayden J. Referring to the capacity assessment, and the fact that BF had not been diagnosed with a mental disorder, the local authority applied to discharge the injunctions that prevented BF from going home. The home remained in a terrible state, and if he went home no care could be put in nor repairs done because of KF's behaviour. Despite this, BF's clear wish was to go back home. Hayden J accepted that BF had capacity under MCA 2005 but instead of discharging the injunctions he extended them to a further hearing when he would hear full argument on whether relief could be granted under the inherent jurisdiction, with the effect that in the interim BF was prevented from going home. The local authority sought permission to appeal against Hayden J's interim decision.
Baker LJ's decision on the application for permission to appeal
Baker LJ refused permission to appeal. He held that BF fitted the criteria set out in Re SA  EWHC 2942;  1 FLR 867 that gave rise to the jurisdiction for the protection of vulnerable adults. Baker LJ confirmed that the jurisdiction can be exercised in a way that deprives a person of their liberty, provided it is exercised in a way compatible with Article 5 and this includes that “..[E]xcept in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’” (Winterwerp v Netherlands  2 EHRR 387 at ). He noted that some vulnerable adults who fall within the jurisdiction may be capacitous but may nevertheless be of ‘unsound mind’ within the meaning of Article 5(1)(e) ECHR. His analysis of Hayden J’s decision was that whereas the judge had agreed that BF had capacity, at this stage he had not been able to conclude that BF was not of ‘unsound mind’ within Article 5(1)(e). Baker LJ held that there was prima facie evidence that BF may be of ‘unsound mind’ by reason of his infirmity and/or all the extraneous circumstances. Further, it was plain from Winterwerp that in an emergency situation someone may be deprived of their liberty in the absence of evidence of mental disorder. Whether or not he was of ‘unsound mind’ would be for the judge to decide when he had a proper opportunity to assess all the evidence. Baker LJ stressed the need for careful planning for a move home in view of BF’s vulnerability. In the circumstances, he held that Hayden J had been entitled to adjourn the decision on whether to discharge the injunctions to a full hearing, despite the fact that this meant that in the meantime BF’s own views would be overridden.