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Vulnerable witnesses revisited

The Court of Appeal have looked again at a case involving the issues of a vulnerable adult giving evidence.  Re M (A Child) 2013

Sadly, given how often this crops up, they have not given any generic guidance for the Courts to apply, but the case throws up some interesting issues.

http://www.familylawweek.co.uk/site.aspx?i=ed111952

 

The issue related to a finding of fact hearing, where the father was one of the adults “in the frame” for causing the injury to the child.  Noting his cognitive difficulties, a cognitive assessment was undertaken of him.

 That concluded that he was not capable of instructing a solicitor, but was capable of giving evidence. He would not be capable of providing a narrative statement.

 His capacity to give evidence was both fluctuating and deteriorating and before the fact finding hearing, a further updating report on his cognitive abilities was commissioned.

 This arrived the day before the fact-finding hearing was to begin

 

6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father’s capacity to testify had deteriorated in consequence of mounting stress and anxiety.  Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility.  In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:

“He should be offered a ‘supporter’ whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers.”

7. Then, below the bullet points, Dr North wrote:

Mr Smith becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link.”

And then, importantly, in the concluding paragraph:

“Mr Smith is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings.”

 

Now, obviously, none of this was in place the next working day, and those representing the father made requests that such arrangements be made.

 The Judge rather ‘parked’ that issue, saying well, we will all try, counsel and myself, to make it easy for the witness“, but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father’s performance. 

 The Court of Appeal describe this as a ‘high risk judicial case management decision’ and of course, not actually determining the application for the steps proposed by Dr North to be taken or not taken, robbed the father of either having those safety mechanisms or being able to appeal the decision for them not to be provided.

This next bit is very peculiar –the Guardian was charged with the role of being the ‘advocate or intermediary’ to help the father in the witness box.

 

The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary.  He had no previous experience of that role unlike Dr North.  He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.

This seems to me to have been an intolerable position both for the father and the Guardian to find themselves in.

At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services.  He said, by way of self-criticism, that he felt that he had failed the father

The Court of Appeal came to the conclusion that the father had not been fairly treated by the process and that his article 6 right to a fair trial had not been properly adhered to, and directed that the finding of fact hearing be re-tried.  [underlining mine for emphasis]

 

21. By way of conclusion, I would like to express my appreciation of the burden borne by  [the Judge] , who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases.  Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date.  Had she acceded to Ms Storey-Rae’s application, the consequence would have been months of delay.  So I would wish to be in every way supportive of the judge’s general duty to manage all cases to achieve targets.  I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability.  It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae’s application of 13 April.  I think she fell into error in adopting the “let’s see how we get on” management policy.  As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.

22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity.  It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal.  Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place.  Some steps were taken to ease the mother’s contribution by ensuring sight lines that did not bring her into direct eye contact with the father.  It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.

23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights

 

It does seem that the importance of this case will be in those representing such vulnerable persons to secure detailed expert evidence addressing the difficulties of the client in giving evidence and what can be put in place, and in persuading the Court that such recommendations need to be adjudicated on and not merely ‘parked’

 Given what we know of the Legal Services Commission, I am unclear as to how funding to obtain the intermediary or advocate to assist father in the witness box would be obtained, but those efforts would have to be made. It must be manifestly unfair for a party to the proceedings to have to take that neutral role.

White papering over the cracks?

 

A very brief look at the draft Care and Support Bill.

 

 

There’s a consultation going on (isn’t there always?)  this time on Safeguarding for adults, and whether some new powers should be introduced.

Firstly, it recommends removing s47 of the 1948 National Assistance Act, which was the power to remove someone from their home. They say, and I tend to agree, that  “Enacted in a very different era, its language and intentions are not compatible with our current approach to community-based support that promotes and protects people’s human rights “

 

I completely agree that it is a dangling remnant of a bygone era when doctors always knew best, and I’m not sure it is deeply compatible with Human Rights and probably should be scrubbed from the statute books.

 

Having said that, I’m not sure that s47 is an active problem – I can recall having only even looked at it as a possibility (and then discounting it) in one case.  I’ve never heard of anyone ever applying for such an order.   [It is interesting, for example, that on the bible on community care law  - Luke Clements and Pauline Thompson’s  “Community Care and the Law”, the section on s47 removal powers is just under a page long and cites no case law about it at all. ]

 

In case you want to know, here is verse, and also chapter

 

47 Removal to suitable premises of persons in need of care and attention. E+W

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)If the medical officer of health certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

 

 

So, I would agree that s47 be terminated with extreme prejudice, but it isn’t going to transform the world we live in.

 

The other big proposal is that there should be statutory principles about adult social care and safeguarding  (along the lines of the principles enshrined in the Children Act) , and to put it right at the beginning  – s1 the general duty of a local authority in exercising any powers under this Act with regard to an adult is to promote that adult’s well-being.

 

Again, I see no problem with that.

 

Then to give clear legal principles as to entitlement to support, including entitlement for carers and the right to insist on this being made by direct payments.   I remain sceptical that direct payments, or personalisation, is quite the magic wand that the Government believe it to be. I can see the concept that an individual should have the resources given to them to decide how they want to spend it on meeting their needs rather than having a paternalistic state decide, but I think in practice, it massively overlooks that adult social care tends to be given to the very most vulnerable members of society who may not be in quite the same position as a Local Authority bulk purchaser of services to achieve such good value for money. Nonetheless, direct payments and personalisation are the miracle cure, and thus we’re going to have them enshrined in legislation until such time as Government decides that passing the buck to vulnerable people to meet their own needs with a small amount of cash doesn’t really work.

 

 

This is a particularly interesting bit – clauses 31-33   – a person receiving a package of support will be entitled to the same package of support if they move to another area [at least until fresh assessments are done].  That is good for the person, certainly.

 

Very bad for the receiving local authority if the first LA realise that the person is planning a move and decides to offer them a ‘moon on a stick’ package of support which is Rolls Royce, knowing that they will only have to provide it for a week before the new LA gets lumbered with it for much longer.

 

It may well be a chance for festering scores to be settled between LA’s – it’s practically a statutory “griefing” mechanism.  [But maybe I am being too cynical, and neighbouring authorities will work together to achieve good outcomes for vulnerable adults moving between their authorities, just as they always endeavour to do now]

 

I do very much like the provision that where a person is placed in area B by Local Authority A, it will be Local Authority A who remain responsible for that person, and that will hopefully resolve a lot of inter-authority bickering.

 

 

There will be for the first time in statute, provisions about adult safeguarding, setting out the duty to carry out enquiries into suspected abuse, and there is discussion about whether the State should be able to apply for a warrant to gain access to a vulnerable person if it is believed they are being abused in order to investigate.

 

 

The consultation on that runs until 12th October, so if you have firm views about whether or not the State should have the ability to seek a warrant to enter the home of someone believed to be a vulnerable adult being abused, and the circumstances that would trigger such a warrant being granted, speak up quickly.

 

There are also interesting ‘smoothing’ provisions aimed at meeting the gap where a young person receives support and assistance from the LA under Children Act legislation until they reach 18, then get nothing at all whilst they wait for a community care assessment of their adult needs. The new proposals will ensure that the package of support they are getting as a child continue up until the community care assessment is done and a fresh package of support put in place.  I have to commend that, as being a gap that needed to be filled and a good proposal for filling it.  

 

All in all, I think this is a decent piece of draft legislation, and doesn’t contain anything that I consider to be outrageous or ill-conceived  (my personal anxieties about personalisation aside, that’s a direction we’ve been travelling in for a long while now)

 

 

We’re only making plans for Nigel

 

 

Inherent jurisdiction and vulnerable (yet competent adults)

 

 

 

DL v A Local Authority and Others  [2012] EWCA Civ 253

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

 

 

 

A fascinating case, and one which deserves to be analysed by someone with greater skill and expertise in adult social care law than I possess. But I am interested in it, and felt it was worthy of discussion.

 

It deals fundamentally, with the tension between individual autonomy and protection of vulnerable persons; and of whether there is a bright line to be drawn between when the State can tell a person that they can’t make that decision because it is not in their best interests to do so, and where if so, that bright line is to be drawn.

 

Many people might have thought that the introduction of the Mental Capacity Act 2005 settled that once and for all :-  the State, and ergo the Court, can replace a person’s decision with one that is in their best interests if, and only if:-

 

(i)            they are a minor, when the principles of the Children Act 1989 apply

(ii)          they are suffering from a mental illness or disorder sufficient to justify intervention under the Mental Health Act

(iii)         they lack capacity to make that decision, when the principles of the Mental Capacity Act apply.

 

 

But nothing much in law is settled “once and for all”   (with the honourable exception perhaps of precisely what words one can or cannot use when advertising carbolic smoke balls)

 

And the Court of Appeal have been grappling with the issue of whether a person who has capacity, is not a child, is not mentally disordered but is nonetheless “vulnerable” can have their autonomy restricted by use of the inherent jurisdiction of the Court.

 

The facts of the case are relatively straightforward, and I’ll quote them from the judgment  (the bolding is mine) :-

 

  1. For the purposes of the determination of the legal point the parties have helpfully agreed a set of “assumed facts” which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.

“Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.

 

Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.

 

The local authority is concerned about DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.

 

The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.

 

The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife’s wishes.

 

 

When this case came before Lord Justice Wall in October 2010, he made injunctions under the Inherent Jurisdiction to safeguard Mr and Mrs L from the alleged domestic abuse from their son; notwithstanding that they did not apply for such an order and did not want that protection and were happy for their son to live with them.

 

Whether you think that is right or not, depends largely on where you stand on the personal autonomy versus protection of the vulnerable debate.

 

The legal issue for the Court of Appeal was framed in admirably concise prose by Mrs Justice Theis :-

 

“The central issue in this case is whether, and to what extent, the court’s inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor.”

 

The hearing in the Court of Appeal makes for interesting reading and some very strong arguments were marshalled on both sides.

 

For the appellant, DL, represented by Ms Nathalie Lieven QC  (someone I am sadly not familiar with, but without any doubt on reading this, a considerable force to be reckoned with and a piercing mind)  :-

 

  1. The principal arguments deployed by Miss Lieven in this court can be summarised as follows:

a) The only authority prior to the introduction of the MCA 2005 which indicated that the inherent jurisdiction extended to adults who maintained their mental capacity is limited to one case, namely Re SA. Re SA was not supported by any earlier authority and is therefore to be seen as an isolated decision which is insufficient to bear the weight now put upon it by subsequent decisions, including that of Theis J in this case;

b) The MCA 2005 was clearly intended to provide a comprehensive statutory code for those who lacked capacity;

c) If a case, such as the present, does not fall within the provisions of the MCA 2005, then there is no jurisdiction for the court to make orders controlling the lives of those who do not lack capacity within the meaning of the 2005 Act;

d) To the degree that there is any remaining inherent jurisdiction in this field, it is limited to providing a short period for the individual to be allowed to make his/her own decision, and if appropriate the provision of advice.

 

  1. In developing her submissions Miss Lieven understandably stressed the premium which the courts have habitually attached to the right of autonomy enjoyed by every individual in a democratic society. She relied upon the words of Lord Reid in S v McC: W v W [1972] AC 25:

“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”

 

[From my own distorted and unreasonable perspective, if you don’t feel even a tiny urge to stand up and applaud when reading Lord Reid’s words, I would raise an eyebrow at your decision. Were the world ever to lose all reason and appoint me to the higher echelons of the judiciary, deployment of that quotation in a relevant context would be a “Win the Game button”]

 

 

The difficulty for that case, as is obliquely noted in the Court of Appeal decision, is that it invites the Court of Appeal to conclude that Judges can’t be trusted to exercise powers with restraint and a great deal of caution, and they call upon a number of examples where such restraint and caution has been deployed to the advantage of the vulnerable.

 

And for the Local Authority respondent, represented by Paul Bowen  (I note that in this case, both parties had what might be described as ‘thankless briefs’  – one of them trying to justify the Local Authority’s right to interfere in the lives of people who had capacity to make their own decisions, even if those decisions might appear wrong to others, and the other trying to justify that even if the Court felt these adults were vulnerable and needed protection, the letter of the law forebade it)

 

  1. The appeal is opposed by Mr Paul Bowen on behalf of the local authority. He submits that the appeal is based on the false premise that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and thereby ignore their fundamental right to autonomy. Mr Bowen submits that the case is far more narrowly based than that and is limited to those individuals who fall outside the MCA 2005 but who nevertheless have not given, or cannot give, a ‘true consent’ to a particular aspect of their lives not as a result of mental incapacity but for some other reason, such as the undue influence of a third party. Mr Bowen’s submissions have therefore been to delineate the extent of the jurisdiction so that it only covers those cases where it is necessary for the court to act because a person’s capacity to make decisions for themselves has been overborne by circumstances other than those covered by the MCA 2005.
  1. Mr Bowen has the substantial benefit of being able to rely upon the analysis and conclusions of Munby J in Re SA and, understandably, much of his argument was designed to highlight and support those matters. In addition he drew attention to the fact that Parliament was expressly aware of the concept of ‘elder abuse’ during the pre-legislative scrutiny process. The MCA 2005 makes no express provision limiting or extinguishing the use of the inherent jurisdiction. Mr Bowen therefore submits that Parliament can be taken as intending that in so far as the inherent jurisdiction may cover matters outside the 2005 Act, then the legislation leaves that jurisdiction untouched to develop under the common law as it had done prior to 2005.

 

 

 

The decision

 

If you have read carefully so far, you will not be surprised that faced with deciding that Munby J and Theis J and Wall J are wrong and that Judges ought not to be trusted with the power to use the inherent jurisdiction to protect vulnerable adults, or deciding the opposite, the Court decided the opposite.

  1. I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of ‘vulnerable adults’ for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there.
  1. The appellant’s submissions rightly place a premium upon an individual’s autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA):

a) Under constraint; or

b) Subject to coercion or undue influence; or

c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

  1. I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case.
  1. In the same manner, the argument that in the Westminster case the court was concerned with a type of relief (preventing removal from the jurisdiction) which is not catered for in the MCA 2005 and therefore the existence of the inherent jurisdiction to supplement the statutory scheme is acceptable, in contrast to the present case, simply does not stand scrutiny. Either the inherent jurisdiction is there to act as a safety net for matters outside the Act or it is not. The fact that Thorpe LJ and Wall LJ were so firmly of the view that the jurisdiction had survived the implementation of the 2005 Act is a powerful indicator that the Appellant’s argument is wrong.

 

 

 

And then

 

  1. My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of ‘elder abuse’, as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term ‘elder’ in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.
  1. For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.

 

And this bit is particularly important, as the Appellant’s fallback position was that if the inherent jurisdiction could be used, it should ONLY be for a short period, to allow the vulnerable person a period of time for reflection (and where appropriate to seek their own independent legal advice)  – this was rejected.

 

68. It follows that, despite the clarity and skill with which it has been argued, I have no hesitation in dismissing the appellant’s primary grounds of appeal and upholding the decision of Theis J in this case. Although argued as a separate, fall back, ground, it must follow from my unreserved endorsement of the full jurisdiction described by Munby J in Re: SA and applied subsequently in a number of cases at first instance that I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.

 

 

In the second judgment, Lord Justice Davies is able to express matters pithily  (perhaps as Lord Justice MacFarlane had done all of the heavy lifting in his seventy paragraphs of judgment)

 

 

76. Miss Lieven stressed the importance of personal autonomy. She expressed concern to the effect that the retention of the inherent jurisdiction might for the future be resorted to by public authorities, pursuing a “Big Brother” agenda, with a view to ensuring that adults make decisions which conform to an acceptable, state decided, norm (I put it in my words, not hers). I acknowledge the point but do not share the concern. It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that. It is at all events neither possible nor appropriate exhaustively to define “vulnerability” for this purpose. Cases which are close to the line can safely be left to be dealt with under the inherent jurisdiction by the judges of the Family Division on the particular facts and circumstances arising in each instance.

 

 

What is not clear is whether these powers will be used sparingly – I recall Wall LJs injunctions being reported in the mainstream press, but they don’t seem to have opened the floodgates to lots of these applications.

 

And what there is not, as yet, is any decision implying that a Local Authority would have a duty to use these powers to apply to the High Court for orders in the inherent jurisdiction and under what circumstances – reading the clear need for flexibility and not circumscribing the precise situation in which the powers should be used, I rather think that there will not be a decision that sets out the Local Authority’s duty to make such applications.

 

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