Hayden J tests the limits of the High Court’s…

The issue about the extent to which the Inherent Jurisdiction of the High Court can properly be used to protect those who are “vulnerable” but have capacity (within the meaning of the Mental Capacity Act 2005) was much debated following Re SA (Vulnerable Adult with Capacity: Marriage)[2006] 1 FLR 867 and Re L (Vulnerable Adults: Court's Jurisdiction) (No.2) (CA) [2012] 3 WLR 1439. However, these cases frankly leave as many questions unanswered as they address, as I explained in a STEP Singapore Lecture in 2014.

The issue has come back to the forefront in The London Borough of Wandsworth v M & Ors [2017] EWHC 2435 (Fam) (3 October 2017) (“Wandsworth”) in which Mr Justice Hayden had to decide a case where J, who was nearly 18, wished to return to live with his mother in a “cult” like community. There were strong arguments that returning to live with his mother was not in his best long term interests, but that was J’s wish.

I recall doing a very similar case against Anthony Hayden QC a few years ago when he was in practice. I was for the young person, arguing that he had capacity and so could make his own decisions where he wanted to live, and Mr Hayden was for the local authority who argued he lacked capacity. In that case the Judge, King J, was satisfied that he lacked capacity so the issues about the court’s protective jurisdiction for the vulnerable who have capacity did not, in the event, arise.

However in the Wandsworth case , Hayden J was so dissatisfied with the attempts by the local authority to prove a lack of capacity and concluded, at a final hearing, that even the interim orders test under section 48 MCA that “there is reason to believe that P lacks capacity” was not met on the evidence in this case [see §72]. Nonetheless, Hayden J decided that this young man with capacity was “vulnerable” (which was clearly the case) and thus he should invoke the Inherent Jurisdiction of the High Court to make a court order to restrain him from going back to live with his mother.

Whilst this decision is arguably consistent with Re L (Vulnerable Adults: Court's Jurisdiction)(No.2)(CA), it is also profoundly unsatisfactory. Parliament has legislated to define the circumstances where the state can step in as a decision maker to take away personal autonomy. Hayden J said at §82:

“It would be unconscionable and socially undesirable if, due to the weaknesses of an assessment which failed satisfactorily to resolve whether there are reasons to believe that J lacks capacity, he were to find himself beyond the reach of judicial protection. I am clear that he is not. The question that arises is how he can most effectively be protected with the least intrusive and most proportionate curtailment of his autonomy.”

He therefore made an injunction to restrain J, who had capacity, from going back to live with his mother.

There must be a strong argument that this decision breached J’s rights under article 8 ECHR because the law in this area is so vague as to fail to comply with the procedural requirements of an article 8 compliant process. The above paragraph assumes the court’s right to become the decision maker for a vulnerable adult in circumstances beyond those prescribed by Parliament in the MCA, but does so without any proper rationale or legal justification. The question ought not to have been “was it in J’s long term best interests to go back to live with his mother”. The answer to that question was plainly “No”. However, that is not the right question. The real question is, “given that Parliament has positively affirmed the right of those with capacity to make unwise decisions, what jurisdiction does the court have to prevent this young man taking this unwise decision?”

There are thousands, if not hundreds of thousands of individuals in the UK who are highly “vulnerable” applying the tests used by Hayden J in this case and so could have their decision making removed from them if their cases happened to come before the High Court. Examples include individuals with chronic mental illnesses which falls short of being sectionable under the MCA but nonetheless make them hugely vulnerable, those who are tied into abusive personal relationships because of a lack of economic ability or emotional strength to walk away or those whose lives are constrained by dysfunctional family relationships from which they have little practical ability to escape. In all of these cases those who have capacity are allowed to make their own decisions, even if this ends up with them continuing to live in wholly unsatisfactory circumstances. It is often pure happenchance as to which of these individuals come to the attention of social services and which have cases that end up before the High Court. Society does not interfere in the vast majority of these cases because, however against their long term best interests, a person with capacity’s right to take their own decisions is respected.

There are cases where a person’s decision making power is overridden by the undue influence of another so, in reality, they are making no decision. Their vulnerability may assist the court to come to the view that the undue influence of another removes a vulnerable person of decision making power. But, at least on the reported decision, the Wandsworth case involved an externally imposed undue influence.

It cannot be good law or good policy for the High Court to continue to expand the category of the “vulnerable” where the court strips them of decision making powers, and thus removes the right to make unwise decisions. It can only be hoped that the case goes to the Court of Appeal so that the Court can place some proper limits on the ability of judges to act as decision makers for those who have capacity.