Decision making, mental capacity and undue influence: Do hard cases make bad – or least fuzzy edged - law?[1]

1.             A series of UK cases over the past decade have explored that difficult space between the right of the court to intervene where decisions are made by those who lack mental capacity and those who have capacity but are in a situation where they are vulnerable to being influenced in their decision making by the influence of others – including relatives and friends - who may be influencing others to do acts which could well be, objectively speaking, against their best interests. A new category of persons has emerged “the capacitous but vulnerable” individual, and the High Court now routinely makes orders to intervene in the lives of those who interact with such persons.

 2.             The purpose of this paper is to suggest that:

 a)    There are well established categories of cases where decisions by individuals with capacity can be set aside by a court of equity for undue influence or another proven legal wrong and it may well be easier to prove such a case if an individual is “vulnerable”.

b)    However the law has taken a wrong course by extending the power of the High Court in exercising its inherent jurisdiction by intervening in cases where a vulnerable person is making unwise decisions but there is no proven case of a legal wrong inflicted on that person.

c)     It is time for a correction so that the autonomy to take decisions by those who have capacity should not be overridden unless it is proved that they have been subject to criminal conduct by third parties or provable legal wrongs by those third parties.

3.             The problems are illustrated by In FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) where HHJ Bellamy, sitting as a High Court Judge, observed:

“ … the High Court has a wide and largely unfettered discretion to grant injunctive relief to protect vulnerable adults”

4.             FD concerned a vulnerable young woman who had learning disabilities and significant attachment problems, but had capacity to decide who she should have contact with. She had formed a relationship with an older man who dealt in illegal drugs, GH. Her father was also a seriously bad influence. The social workers believed – and were arguably clearly right to believe – that both were bad influences on her and sought injunctions to restrain her father and GH from seeing her. The court followed a now well-established approach to asking if she was vulnerable and, if so, whether it was in her best interests to grant injunctions to restrain the “boyfriend” from seeing her. The case came before the court on the issue as to whether the court could attach a power of arrest to the order.

5.             However, key jurisdictional problems did not appear to have been addressed in that case – and have been elided over in a series of such cases. These problems are (a) has the court identified a clear legal “wrong” committed against P on the facts of the case, (b) if there is such a legal wrong, who has the legal right to ask the court to interfere to correct that legal wrong and (c) if no clear legal wrong is identified, is the court being asked to grant a legal remedy in the absence of a proven legal wrong.

6.             These may seem to be abstruse legal points of purely academic significance which have no place in measures to be taken to protect vulnerable individuals who are at serious risk of being exploited by others. However, I would respectfully suggest that that approach would be misguided. We operate in courts of law – and everyone is entitled to freedom under the law. Our common law system is underpinned by the key principle that everyone – including drugs dealers and the learning disabled - have the right to make our own choices about how we live, who we spend time with and how we spend our own money. This principle was summarised by Lord Reid in S v McC (orse S) and M (DS intervener) [1972] AC 24 , 43:

“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”

7.             The Court of Protection is always striving to achieve the right balance between autonomy and protection for those who lack capacity. The need to respect the right of those with capacity to make their own unwise decisions underpins the relationship between individuals and the state – mediated through the courts. The Court has also recognised that a person with an impairment of the mind or brain may lose capacity due to the overbearing influence of a spouse, relative or “friend”. That was the situation in A Local Authority v A[2] where Bodey J held that Mr A’s influence over Mrs A meant that she failed the test for capacity because, although she could understand information about contraception, she couldn’t weigh it in the balance to arrive at a choice because of his influence over her. The Judge said:

“73. In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that her decision not to continue taking contraception is not the product of her own free will. In this respect, I do accept the opinion of Dr K and fully agree with him that she is unable to weigh up the pros and cons of contraception because of the coercive pressure under which she has been placed both intentionally and unconsciously by Mr A. That is not something for which Mr A should feel himself 'blamed'. It is a product of a number of factors, including their respective personalities and learning disabilities; Mrs A's dependence on him and fear of rejection; her suggestibility and wish to please him; his lack of insight as to the true extent of her difficulties; his rigid views about their status as husband and wife; his own wish to start a family, which is to be fully respected; and the fact that he has never yet felt included the decision. For these reasons, I am in no doubt that Mrs A presently lacks capacity to take a decision for herself about contraception.

8.             No one is suggesting that the courts should not intervene to stop vulnerable individuals being subjected to unlawful behaviour by those who seek to control them for their own nefarious ends. Clearly there is a role for the court to intervene in the right case. But public bodies, and especially the Courts, need to pay due heed to the fact that a person with capacity who is the victim of a legal wrong can choose not to bring proceedings as well as to enforce their legal rights. Thus a wrong does not necessarily require a legal action to put it right.

9.             If a criminal offence has taken place, the situation is different. The victim does not have a veto to prevent the state intruding in people’s private lives by bringing criminal proceedings. This is so even if the individual actively sought and encouraged criminal conduct by others, as the House of Lords confirmed in the sadomasochistic cases: see R v Brown [1993] UKHL 19. Equally, it is no defence to a charge of assisting a suicide under the Suicide Act 1961 to say that the person had capacity, was terminally ill and the defendant was assisting them to die at a time of their choosing. But criminal offences are determined in the criminal courts, not in the civil courts. 

10.         Between criminal offences and private law civil wrongs, there are a series of statutory powers available to local authorities in cases where an individual commits “anti-social behaviour” under the Anti-social Behaviour, Crime and Policing Act 2014. In that Act “anti-social behaviour” means—

“(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,

(b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or

(c) conduct capable of causing housing-related nuisance or annoyance to any person”

11.         These are wide categories and it may well be that local authorities would be far better advised to bring future proceedings under the 2014 Act rather than by invoking the inherent jurisdiction. Further, a person who is subject to repeated harassment could bring proceedings under the Protection from Harassment Act 1997. But he or she could decide not to do so. If a person with capacity makes that decision, however objectively unwise that decision may appear to others (and it may be objectively utterly unreasonable), that is an expression of an individual’s autonomy which broadly the state has to accept.

12.         So back to Re FD. The young woman in question refused to accept she was “vulnerable” and, despite having some insight into the fact that she was being exploited, wanted to continue seeing both her father and GH. The Court concluded she was vulnerable and that it was in her best interests to restrain both her father and GH from seeing her. Assuming that both were correct (and on the facts that appears overwhelmingly to be the case) was an order that a court of law should have made? The problems, I suggest, were (a) that the court in this case invoked a legal remedy without clear proof of a legal wrong and (b) the remedy was far too wide. That, I would respectfully suggest, leads to some difficult questions. Legal remedies can be invoked in order to respond to past proven legal wrongs or to seek to prevent future legal wrongs. However, how have we got to a point where injunctions are being made by the courts without the proof of a past legal wrong or to prevent a future legal wrong? 

13.         Where there is a legal wrong, there should be the potential for a legal remedy. And if the vulnerable person does not have the capacity to protect themselves against being the victim of a legal wrong, it seems right that a public authority can legitimately intervene to create a breathing space to allow the individual time and headspace to make his or her own decisions as to whether to continue to be subject to a legal wrong. But has the recent development of the common law in this area led to the Court asking itself the right questions and, if not, how have we got here?

14.         If, the Courts are giving legal remedies affecting a person with capacity without the proof of a legal wrong, I tentatively suggest that, as a matter of principle, the court is acting where it should not do so. However appropriate and sensible making orders may appear in an individual case, the absence of a provable legal wrong ought to deprive the court of all legitimate authority to interfere in the lives of persons with capacity. To do so runs the danger of developing an unacceptable form of palm tree justice, not sanctioned by Parliament. It opens the possibility – perhaps not demonstrated in cases to date – for social engineering under which the common law is asked to provide a legal remedy to restrain the free actions of individuals in the absence of provable legal wrongs. 

15.         The “locus classicus” of this line of cases is Re DL (Vulnerable Adults with Capacity: Court's Jurisdiction) (No 2) [2012] EWCA Civ 253[3] where the Court of Appeal had to decide whether it should invoke the inherent jurisdiction to restrain a man in his 50s who was, according to the local authority, behaving aggressively and occasionally violently towards his elderly parents, although it was not alleged that the son had committed any criminal offences, the police were not involved and it was not proven that he had committed any civil wrongs. The parents, at least at the stage that the proceedings commenced, had capacity and were not making complaints or seeking to persuade the local authority to take action to restrain the son. However, social workers felt differently and sought orders to restrain the actions of the son.

16.         The Court of Appeal supported orders made by Theis J under the inherent jurisdiction to restrain the actions of the son. The basis of the orders was that, notwithstanding that the court accepted that, at that time, the parents had capacity to make their own decisions about contact and residence, the court should intervene at the behest of the local authority.

17.         In order to understand how the Court came to exercise powers in the “jurisdictional hinterland”, which the Court decided existed to deal with cases of 'vulnerable adults' who fall outside the Mental Capacity Act 2005, a little legal history is needed. The common law and equity has long recognised that, in a series of private law actions, some legal decisions made by persons with capacity can nonetheless be unravelled by the Court. The Courts have long recognised that a party could seek to set aside decisions that they had made as a result of the undue influence of another. 

18.         In Allcard v Skinner (1889) 36 Ch Div 35 a Plaintiff claimed back sums voluntarily given to the Defendant when she was in a religious order. That was a situation where the Defendant’s undue influence was presumed as a matter of law because “she was in such a position that she could not freely exercise her own will as to the disposal of her property”. The presumption of undue influence was not rebutted because the Plaintiff had no independent advice before she made the gifts. However, Mrs Skinner eventually lost her claim for repayment because this was an equitable remedy and she was defeated by her own delay in bringing the action.  

19.         There are 3 key limitations which need to be noted in relation to this type of legal action. First, this was a private law action between individuals in which a person was seeking relief against decisions they had made at an earlier time, and seeking to undermine the legal validity of those decisions due to undue influence. Secondly, this was a case which was founded on a civil law legal wrong. It matters not that this was a case where the “legal wrong” of undue influence was assumed and thus did not need to be proven. The court would not entertain a claim to give Mrs Allcard back her money unless she proved that it was given in circumstances which were voidable due to undue influence. Unless a legal wrong was proven, albeit on these facts thus the onus of proof to disprove an assumed legal wrong was on the Defendant, Mrs Allcard had no case however vulnerable she may have been. Thirdly, even if the Defendant did not disprove the legal wrong, the defendant had the full range of other private law equitable defences available to him.

20.         The Chancery Courts have developed the undue influence/unconscionable bargain doctrine to set aside decisions made by individuals in a variety of closely defined circumstances in which the donor of a benefit accruing to the defendant was guilty of behaviour which offended the equitable conscience of the King (or Queen), that being the traditional role of the court of chancery. In one way or another, each of these actions asserted that P had exercised no free choice to confer the benefit on D or should be presumed not to have made a choice which he or she could not later disown. Relief was dependant on the unconsciously conduct of the recipient. Hence, if the recipient had not acted to subvert P’s will and was unaware of P’s lack of capacity and could not reasonably have known, the arrangement would not be set aside: see Hart v O'Connor [1985] AC 1000.

21.         These were cases brought under the Court’s common law equitable jurisdiction in the sense that the remedies were not prescribed in statute. However, these were all proceedings brought by the donor or by those acting on behalf of the donor’s estate. Hence P, or those exercising P’s rights, was seeking to overturn earlier decisions that P had made. The form of the action has significance. Individuals who have wrongs done to them have the option to take legal action or not to do so. If they take legal action to enforce the claimed wrong, they may succeed or they may fail, and if they fail they may have a costs order made against them. But the individual with capacity has the legal right to make the decision not to litigate even if a legal wrong has been committed against that person. Thus a person with capacity who is a victim of a road traffic accident may choose not to sue a driver. A parent whose son or daughter steals from them may decide not to take a civil action to recover the proceeds of the theft.

22.         Thus one key difference between these private law actions brought by P or his estate and the wrongdoer and the recent “vulnerable persons” caselaw is that it involves different parties. The recent cases are proceedings brought by government bodies who have sought to litigate in the public interest to prevent private law wrongs being committed against a person with capacity, often regardless of the views of the person with capacity. FD did not accept she was “vulnerable” and did not want the court to grant an order to prevent her boyfriend meeting her. The court held a hearing on that issue and decided she was vulnerable. However there is no statutory definition of vulnerability and so it is entirely unclear what tests the Judge set himself in reaching that conclusion.

23.         But pausing for a moment, is it right that the courts should intervene to protect the vulnerable from the consequences of their own choices unless it is also proven (a) that the individual with capacity has the legal right to disown the decision and (b) is actually disowning that decision? 

24.         The usual arrangement between individuals and the state is that people have the autonomous right to make their own choices, however unwise, unless either (a) the person lacks capacity or (b) the person transgresses the criminal law. A person who chooses to breach someone else’s civil law rights may (or may not) face a civil action at the behest of the person who has been wronged, but the state does not interfere. The coercive power of the state is only introduced when a criminal offence is committed. In all other cases, private law rights and remedies are left to individuals.

25.         The joint parliamentary committee which examined the Mental Incapacity Bill – as it was then known – considered whether to extend the legislation to include circumstances such as vulnerable people who are subject to undue influence. Para 270 of the Committee Report states:

“Professor John Williams suggested to us another approach to extend the scope of the Bill to cover the lack of capacity to make a free choice as a result of undue influence (or unacceptable pressure). It was recognised there is a precedent in the common law. As Professor Williams acknowledged, drafting such a clause would be ‘immensely complex’ and would have to contain significant safeguards to avoid unnecessary intervention. We do not feel confident in recommending such an approach.”

26.         Thus the circumstances in which the common law would intervene to prevent the vulnerable with capacity being subject to interference with others were deliberately left out of the Mental Incapacity Bill – later the MCA.

27.         If a person is subject to conduct by others which constitutes a criminal offence, there seems nothing in principle wrong with using the civil law to protect a victim of continuing criminal offences. Society has drawn the line about what is and is not acceptable conduct by the criminal law and the offender has crossed the line. An example of such an approach was Re SK [2004] EWHC 3202 (Fam) which concerned an adult who the Foreign and Commonwealth Office believed was being kept against her will be relatives in Pakistan in order to force her marry someone of her family’s choice. However the assumption of jurisdiction was not put on the basis of a breach of the criminal law, but put far wider. Singer J said:

“An adult cannot be made a ward of court, but the inherent jurisdiction of the High Court can, in an appropriate case, be relied upon and utilised to provide a remedy. I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values. If an adult is deprived of the capacity to make relevant decisions, then if there is disagreement about what should be done in his or her best interests or if there is a serious issue as to the propriety of what is proposed, recourse can be had to the court for declaratory relief”

28.         The equation of vulnerable adults with the court’s parens patriae jurisdiction adopted for children and those without capacity appears to me to be problematic. But, on the facts of SK, the court’s interference was plainly justified. There was a clearly proven, at least on a prima facie basis, a series of criminal offences or civil wrongs and so the line of unacceptable conduct had been crossed. Although it later turned out that the young woman did not want the court’s assistance.

29.         The next case to consider is Re SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam) [2006] 1 FLR 867. SA concerned a young woman who was about to be 18 years. She came from a Pakistani Muslim family and lived with her parents and two younger brothers. She was profoundly deaf, had no oral communication, had profound bilateral sensory neural loss and significant visual loss, and could communicate only in British Sign Language which is based on English. She could not lip read the family's first language Punjabi and nether of her parents were able to use British Sign Language. Her intellectual level was assessed at that of a 13-14 year old. Whilst SA was still a minor she was made a ward of court and various injunctions were made preventing SA being removed from the jurisdiction or married. The local authority remained concerned, after SA reached her majority that she may enter into an unsuitable arranged marriage. The evidence established that she had the capacity to marry. However, the understandable concern was that her limited ability to communicate and understand could result in her entering into an unsuitable marriage, which would pose significant risk to her future well-being and mental health. The question arose whether the court could exercise its inherent jurisdiction to protect her from those risks, even though she was an adult with capacity to marry.

30.         The question was framed as to what steps, if any, should the court take to protect this very vulnerable young woman from the consequences of decisions that she was fully entitled to take but where she may not fully foresee the consequences of those decisions. Munby J decided:

“It is now clear, in my judgment, that the 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 parens patriae or wardship 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”

31.         It is worth examining whether a close examination of the cases relied upon by Munby J to reach this conclusion justified it, or whether Munby J’s conclusion could not be drawn from previous cases. The first group of cases relied on by Munby J concerned adults who lacked capacity[4]. There is no dispute that the parens patriae jurisdiction has been exercised by the High Court in children cases and to make decisions for those who cannot make decisions for themselves. However these cases do not constitute authority that the court has jurisdiction to make decisions for vulnerable adults who have capacity. 

32.         The second group of cases were said to be cases where the court “exercised to restrain the publication of matter damaging to a vulnerable adult”. However, closely examined, they were not. Three cases were referred to. The first was Sheffield City Council v E[5]. This was a case about the right approach to assessing P’s capacity to marry. There was no suggestion in the case that the court would or could interfere if capacity was proven but the court still remained of the view that relief should be granted because P was vulnerable.

33.         The second case was a pre-MCA case, namely In re A Local Authority (Inquiry: Restraint on Publication)[6]a decision of Lady Butler-Sloss when she was the President of the Family Division. At §106 the Judge said:

“I draw the propositions that the circumstances within which a court will exercise the inherent jurisdiction through the common law doctrine of necessity are not restricted to granting declarations in medical issues. It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability”

34.         “Under a disability” here means a person is unable in law to make his or her own decisions. Whilst that is a clear statement of the scope of the common law doctrine of necessity, it does not support the proposition that the court should intervene apart from in cases where a person was under a disability or, as we would now say in a post-MCA world, lacks capacity.

35.         The third case relied on by Munby J was a 2013 case, E (By her Litigation Friend the Official Solicitor) v Channel Four, News International Ltd and St Helens Borough Council[7]. This was a case where the Official Solicitor sought to restrain the broadcast of a film about a person who was alleged to lack capacity. The Judge decided that P probably had capacity and so said at §105 “That alone is sufficient to dispose of the application”. That approach suggests that the Judge approached the matter in a binary way – in other words the court had power to make decisions for P if, but only if, P lacked capacity. Hence none of the trio of cases relied upon by the Judge supported the common law jurisdiction being extended to cases where P had capacity but was vulnerable.

36.         The final group of 3 cases involved forced marriage[8]. Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam) was solely concerned with whether P had capacity to marry. It was thus a wholly conventional case. The Judge also referred to Re SK which was a case where the basis for the court intervening was that there was reason to believe that an adult was being “deprived of the capacity to make relevant decisions”. In this case SK had the intellectual capacity to make her own decisions but was, it was assumed, unable to do so because she was held in captivity by her relatives[9]. The final case was M v B, A and S (By the Official Solicitor)[10] a 2005 decision of Mr Justice Sumner. In that case it was common ground that P had no capacity to marry. 

37.         Thus, cautious as I am as a mere practitioner in disagreeing with a former President of the Family Division, I would suggest that the authorities relied on by the Judge (with the possible case of Re SK) did not support his conclusion that a jurisdiction existed for the High Court to make decisions about the lives of vulnerable individuals who had capacity unless they were being subjected to civil wrongs which prevented the adult being able to exercise their capacity to make their own decisions. The term “vulnerable adult” was used by Lady Butler Sloss in In re A Local Authority (Inquiry: Restraint on Publication)[11] to be an adult who lacked capacity, as she made clear at §86 to §97.

38.         That was the state of the law when the DL case came before the Court of Appeal. The central issue in the DL case was whether, and to what extent, the court's inherent jurisdiction was 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 were, or were reasonably believed to be, deprived of the capacity to make 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.

39.         Mcfarlane LJ commenced his judgment at Mcfarlane LJ commenced his judgment at §2 saying “It is common ground that the High Court exercised the inherent jurisdiction in relation to adults prior to the commencement of the 2005 Act in 2007” – to which the answer should be “yes, but only those under a disability, not those with capacity who were nonetheless vulnerable”.

40.         The primary case advanced in the Court of Appeal was that the MCA was a comprehensive statutory code to deal with the vulnerable and thus the inherent jurisdiction should not be used to protect the vulnerable who fall outside the MCA. That case was rightly rejected by the Court of Appeal but arguably the court expressed the rejection too widely because it suggested that, at common law, the court had power to make orders where the autonomy of a vulnerable has been compromised by a reason other than mental incapacity because they are:

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.

41.         The first two categories are defensible at common law where a clear legal wrong is done to P. The third category is only defensible at common law if it involves cases of either permanent or temporary absence of capacity, or the suggestion that the common law would intervene in the absence of “free choice” made by individuals puts the case too high.  A homeless person who is offered one choice of premises that the individual considers to be a damp, squalid bedsit as accommodation is “disabled from making a free choice” because the local authority may well have discharged its duty by making that offer, unattractive as it may be. So a “free choice” is a luxury that is only open to some. 

42.         The evidence in Re DL was primarily based on a report by the independent social worker, Mr Fowler. Many of us will have worked with Mr Fowler and admired his professionalism. He explained the difficult dynamics in this house and the extent to which the son influenced the decisions and actions of the parents. He referred to “undue influence” in a re SA sense, namely that their ability to make balanced and considered decisions was compromised or prevented. It seems to me that either (a) there was a provable civil wrong in the decisions of the parents based on the traditional approach of the court based on undue influence or (b) there was no proven civil wrong. 

43.         However the traditional approach is that the bar for proving undue influence is set at a high level. “For actual undue influence, coercion needs to be shown” see Wingrove v Wingrove (1885) 11 P.D. 81). This case speaks of someone being coerced into doing something they would not otherwise do. The distinction between legitimate persuasion and coercion was described as follows in Daniel v Drew[12]:

"… the critical question is not whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand the influence. The donor may be led but she must not be driven and her will must be the offspring of her own volition, not a record of someone else’s. There is no undue influence unless the donor if she were free and informed could say ‘This is not my wish but I must do it’."

44.         The Privy Council said in Barton v Armstrong [1976] AC 104 that equity granted relief where “the disposition in question had been procured by the exercise of pressure which the Chancellor considered to be illegitimate”. Thus, however great the influence which one person may be able to wield over another equity does not intervene unless that influence has been abused. Equity does not save people from the consequences of their own folly; it acts to save them from being victimised by other people[13]. 

45.         If a traditional approach to the legal wrong of undue influence had been adopted by the Court of Appeal in Re DL, it may well be that either (a) the court would clearly have found that a legal wrong had been committed or (b) the evidence would have been found to fall far short of that which needed to be proven and so no legal wrong amounted to no legal remedy. But the court adopted a different and entirely more flexible approach because it assumed very wide powers to make orders in respect of adults who have capacity but who can be categorised as “vulnerable” and who as a consequence of their vulnerability have been deprived of the ability to give “true consent” to a certain course of action. Macfarlane LJ explains the policy justification for the decision as follows at paragraph 63:

“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”

46.         At §53 Macfarlane said that the jurisdiction for the court to interfere in decision made by people with capacity was “targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the 2005 Act”. That is, I would suggest, one half of the correct approach. The missing part of the argument is that, to give legitimacy to the Court’s intervention, the compromise of decision making by the vulnerable must be sufficiently focused that, if this were to be a private law action where P was later seeking to avoid legal responsibility for his or her decisions, the court would grant P a remedy (or would restrain D acting in the manner in which he was proposing to act). In other words, it is not vulnerability per se that gives rise to the jurisdiction but vulnerability coupled with decisions which could later be set aside on established legal grounds or where there is threatened future wrong doing which can be restrained by an injunction. 

47.         At §67, Macfarlane said that the court’s intervention should be aimed at “the re-establishment of the individual's autonomy of decision-making in a manner which enhances, rather than breaches, their article 8 rights”. If that approach was followed in practice, the absence of a proven legal wrong might not be so objectionable. But that is not how the relief was structured either in the case of Re DL or in later cases such as Re FD. In that case FD had some insight into the fact that it was unwise to continue to see her father and GH – but decided to do so anyway. The court did not limit the injunctions to cover a period of reflection but continued them for as long as FD maintained an oppositionist stance.

48.         So the law has, I would suggest, reached a state where a legal remedy is provided without proof of any legal wrong. That seems to me to be a wrong turning – and I would invite practitioners to consider whether the shaky underpinning of the present approach should be drawn to the attention of the court in a suitable case.

[1] Paper by Professor David Lock QC presented to the Court of Protection Bar Association Seminar on 28 October 2019. ?David Lock QC

[2] [2010] EWHC 1549 (Fam) see https://www.bailii.org/ew/cases/EWHC/Fam/2010/1549.html

[3] See https://www.bailii.org/ew/cases/EWCA/Civ/2012/ 253.html

[4] Re C (Mental Patient: Contact) [1993] 1 FLR 940, In re S (Hospital Patient: Court's Jurisdiction) [1995] Fam 26, [1996] Fam 1, Re D-R (Adult: Contact) [1999] 1 FLR 1161, In re F (Adult: Court's Jurisdiction) [2001] Fam 38, A v A Health Authority, In Re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, Re S (Adult's Lack of Capacity: Carer and Residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235, and Re G (an adult) (mental capacity: court's jurisdiction) [2004] EWHC 2222 (Fam), [2004] All ER (D) 33 (Oct).

[5] [2004] EWHC 2808 (Fam), [2005] Fam 326.

[6] [2003] EWHC 2746 (Fam), [2004] Fam 96

[7] See [2005] EWHC 1144 (Fam), [2005] 2 FLR 913.

[8] Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, and M v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117.

[9] In fact the facts may have been somewhat different as the young woman asked for the proceedings to be discontinued – but only after returning to the UK.

[10] [2005] EWHC 1681 (Fam), [2006] 1 FLR 117

[11] [2003] EWHC 2746 (Fam), [2004] Fam 96

[12] [2005] EWCA Civ 507

[13] See National Commercial Bank of Jamaica v Hew [2003] UKPC 51 at [33] per Lord Millett.