Leon Glenister recently worked on a Court of Protection case concerning the inherent jurisdiction of the Court over an adult with capacity
Until the Mental Capacity Act 2005 (‘MCA’), the Court used its inherent jurisdiction to make decisions on behalf of mentally incapacitated individuals. The MCA was enacted to provide a regime for the court to make these decisions, with a definition provided in section 2 on who lacks capacity.
However, under the MCA incapacity relates to the “mind or brain”. But what about those adults who have mental capacity and therefore are outside the scope of the MCA, but are vulnerable in another way, perhaps due to undue influence or duress? The example that has often come before the courts is a young person being pressured into an arranged marriage. Whether the Court should intervene on behalf of these adults is a key policy decision relating to the court paternalism. Judges are only too keen not to pass judgment over an unwise, rather than an incapacitous, decision.
After the passing of the MCA, the first question was whether the inherent jurisdiction of the court in this area survived. It is now clear it has, most recently stated in A Local Authority v DL [2012] EWCA Civ 253. The sum of the case law seems to be that the inherent jurisdiction can be used as a ‘holding mechanism’ to ensure there is no undue external pressure when a vulnerable person who is capacitous makes a certain decision.
In Re SA [2006] 1 FLR 867 (explicitly approved of in DL), Munby J used the jurisdiction to prevent influence from a family arranging a marriage for a girl. Munby J stated the inherent jurisdiction can be used on behalf of a vulnerable adult where they are “reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) 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”. As such, the inherent jurisdiction can be used where there is capacity but no autonomy.
This dicta was recently interpreted by Bodey J in Mrs A and Mr A [2010] EWHC 1549 (Fam). He gave the impression the jurisdiction was temporary, or to put it another way, a ‘holding mechanism’. The purpose of the inherent jurisdiction is “to create a situation where [the vulnerable person] can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do.” Implicit in this statement is the view that it should not be used for extended periods – just enough to allow the vulnerable person to make an autonomous decision.
The court remains concerned not to pass judgment over unwise decisions. In Re SA, Munby J stated it “is no part of the court’s function…to decide whether it is in a person’s best interests to marry. But that does not…mean that the court…is debarred from considering whether it is their best interests to be exposed to an ineffective betrothal or marriage. Nor does it prevent the court concluding that such events would not be in their best interests and therefore should be prevented.”
Crucially, in terms of policy, Munby emphasized the decision was not paternalistic, rather it was to enhance the vulnerable person’s autonomy and independence: “By taking this course, far from depriving SA of her right to make decisions I am ensuring, as best I can, that she has the best possible chance of future happiness”.
To answer the title issue, the court has stopped short of making decisions for mentally capacitous but vulnerable adults. However, it has used its inherent jurisdiction to support these individuals to make an autonomous decision. Where it is invoked, the Court may make orders preventing certain people contacting, or persuading, the vulnerable person on certain issues. However, because of the danger of paternalism, judges are reluctant to use it for an extended period.
