BF was 97 years old and suffered from a range of health problems, including diabetes, osteoarthritis and blindness.
Following his wife’s death, BF’s son, KF, moved into the bungalow that BF had shared with his wife. The judgment cites the relationship between father and son as being “complex”.
BF had promised his wife that he would look after KF following her death and did what he could to honour that promise despite KF’s noted drug and alcohol related problems and him having intimidated visiting care staff to the point that they refused to care for BF at home.
The local authority therefore initiated proceedings in March 2017 as it was concerned that BF was being prevented from receiving necessary care. The property was also reported as being in poor condition.
Over the course of the next two years, the court granted an injunction under its “inherent jurisdiction” to restrain KF, and both KF and BF moved out of the property so that urgent repairs and remedial works could be undertaken.
Unfortunately, however, the local authority continued to encounter difficulties in providing support to BF because of KF’s behaviour. Accordingly, on 5 June 2018 a declaration was made that, having done all that could be reasonably done to provide BF with care, the local authority should be discharged from all duties owed to him.
Unsurprisingly, matters continued to deteriorate and came to a head on 27 September 2018 when BF called the Care Line 15 times and the local authority visited the property. The description of the scene is set out in graphic detail in the witness statement of one of the social workers and paints a picture of BF having been in a state of the most extreme neglect.
The local authority suspected that BF had also lost capacity to make decisions about his residence and so issued an application seeking an urgent hearing.
An order was granted restraining BF from returning home or living with KF and requiring him to reside in residential care provided by the local authority pending further order of the court. When the matter went back to court a week later, BF informed the court that he understood he could not return home until works had been done to the property, that he did not want KF to live in the property and that he could not return to his home until the next hearing. BF also agreed to a capacity assessment which confirmed that BF did have capacity to make decisions on where he should live, including whether KF should like at the property. The report added that BF was aware of the risks, not only to himself but to others were KF to continue to live at the property.
Accordingly, the matter was returned urgently to the court before Hayden J.
Justice Hayden heard evidence and submissions on behalf of the local authority and arranged for BF to take part by telephone. Social workers gave statements to the effect that no repairs had been undertaken to the property because of KF’s continued occupation and that BF’s room remained uninhabitable.
BF urged the judge to allow him to return home. The local authority accepted the evidence that BF had capacity and applied to lift the injunction.
However, Hayden J declined the application and extended the injunction until further order.
The judge accepted that BF had capacity to make decisions about his residence under the Mental Capacity Act 2005 and that BF was unhappy in the care home and wanted to return home to live with his son. The order precluded BF from reside in his home and ordered him to reside at a care home chosen by the local authority.
The judge commented that:
“It was submitted that once an individual had capacity the inherent jurisdiction had no reach. The Court of Appeal [in Re DL] roundly and unequivocally rejected that and did not attempt to circumscribe the scope/ambit of the inherent jurisdiction. Whether it extends to the kind of protection that BF needs is moot…It strikes me as an important application of the law to the facts of this case. It requires an analysis of the scope of the law to impose welfare decisions on vulnerable adults who otherwise have capacity.
I am driven to adjourn this application so I can receive full argument on this point. All parties, not just BF and the local authority, are entitled to nothing less. In the meantime, and on an interim basis, BF should remain where he is. I know he is eager to go home and I do not discount the possibility that that he might be able to as a result of my final decision. At the moment and in the present circumstances, I am satisfied that the inherent jurisdiction reaches that far.”
This decision was appealed by both the local authority and BF who maintained that the order was in breach of BF’s Article 5 rights, namely the right to liberty and security.
On appeal, Baker LJ rehearsed the law on the survival of the inherent jurisdiction since the coming into force of the Mental Capacity Act 2005. He upheld Hayden J’s decision and refused the appeal on the basis that:
- BF was a vulnerable adult by virtue of his age, blindness and other infirmities combined with his traumatic experiences living in squalid and dangerous conditions at home. He had an extremely complex relationship with his son, which on the evidence Hayden J considered to have elements of insidious, persuasive undue influence which would bring it within the jurisdiction of the inherent jurisdiction as per Re SA  EWHC 2942 (Fam).
Notwithstanding the expert evidence that BF had capacity it was recognised that he was unquestionably in need of protection.
- The test for “unsound mind” is different from the test for capacity and, although the expert evidence is that he BF had capacity to make decisions concerning his care and residence, there was evidence to suggest that he was of unsound mind.
- The European Court of Human Rights case of Winterwerp v. The Netherlands  2 EHRR 387 was authority for the finding that, in an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing their Article 5 right to liberty and security.
Baker LJ concluded that:
“In circumstances where someone is found not to be of unsound mind, they cannot, of course, be detained in circumstances which amount to a deprivation of a liberty, but a move home in these circumstances is something which requires very careful planning and support. This is a crucial component of the protection afforded by the inherent jurisdiction and, in my judgment, entirely consistent with BF’s overall human rights.”
Baker LJ further acknowledged that decisions of this nature should not be made summarily and that Hayden J was entirely justified in adjourning the matter for some weeks pending further argument. Baker LJ further recognised that he was extremely sorry that BF would not be going home for Christmas but that in his view, Hayden J was right to refuse to permit him to do so.
The decision has been described as “surprising” and, at first glance, it is difficult to see how it could be possible for the court to make decisions about the residency arrangements of an individual who has capacity in circumstances which amount to a clear deprivation of liberty.
However, Baker LJ’s comment that “He is, without question, a person who falls in the category of vulnerable adults for whom this expanded role of the inherent jurisdiction is intended” accurately summaries the position and arguably justifies the approach ultimately taken.
Indeed, in recent years, the court’s inherent jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults and, arguably, this is exactly what this judgment has done.
The judgment draws a clear distinction between the test of capacity under the Mental Capacity Act 2005 on the one hand, and the test for “unsound mind” on the other. It also suggests that, in the absence of a finding of an unsound mind, a deprivation of liberty in this context could not take place. What is questionable, however, is the extent to which unwise decisions where there is no evidence of an “unsound mind” made by individuals who clearly have capacity should and will be overridden by the courts, particularly in emergency situations.
The matter will shortly come before Hayden J for a final determination and we await that with great anticipation.