Strand, London, WC2A 2LL
B e f o r e :
| Southend-on-Sea Borough Council
- and –
Mr P Patel QC (instructed by Bindmans LLP) for the Respondent
Hearing dates: 4 February 2019
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Honourable Mr Justice Hayden :
"I am convinced that if [Mr Meyers] goes home he could or will die (my emphasis) because he is at risk of a significant deterioration to his health. He is at risk of developing pressure areas due to the lack of any soft furniture on which to sit and his additional health complication of diabetes. In the condition which we found [him] last night, it is our view that the lack of pressure area care would be an extreme risk to him as his skin will break down and he is at risk of sepsis…
[Mr Meyers] is dehydrated, he has a urinary tract infection, he will not be able to take his medication there are no vessels in which he can run his water and he cannot get around as he can do no more than transfer with the assistance of two to three people... he is unable to get water… unable to see as he is blind in both eyes and therefore is unable to manage his medication"
Mr Meyers then prepared and the Local Authority served (on 8 October 2018) a notice on KF, terminating his licence to reside at Mr Meyer's property. The plan at that stage was (i) to facilitate KF's move out of Mr Meyer's home; (ii) to assist with KF's access to services to address his various dependencies. The plan was not accomplished. KF continues to live in his father's bungalow.
i) Mr Meyers has capacity to make decisions about his living arrangements.
ii) He wishes to return to his home to resume living with KF. He first expressed this wish on 6 November 2018 (para 16 of Mr Gibbon's fifth statement) and has not resiled from it despite being reminded of the circumstances in which he was living by the end of September 2018 (paragraphs 47 – 68 of Mr Gibbon's fifth statement).
iii) Mr Meyers has been told by the Local Authority that if he returns to his home to live with KF, the Local Authority will be unable to secure any care for him, as a result of the state of the property and KF's behaviour. Mr Meyers has also been told that the Local Authority cannot arrange for any repairs to the property while KF remains living there (paragraph 58 of Mr Gibbon's fifth statement).
iv) No repairs to the property have been undertaken as KF remains living there.
v) At a visit to the property undertaken by Mr Gibbons on 16 November 2018, despite KF making some attempts to prepare the property for his father's return, Mr Meyer's room remained uninhabitable (with no bed, rubbish piled in the corner and dirt (possibly faeces) all over the floor) (para 38 – 42) of Mr Gibbon's fifth statement].
vi) A further visit to Mr Meyers's home was attempted on 3 December 2018 (unsuccessfully). Mr Gibbons' notes at paragraph 44 of his fifth statement that on looking through the windows, the living room looked reasonably free of clutter, the kitchen appeared neat and tidy and free of cutter and mess, the appliances were clean with a new microwave in place and a bowel of fruit. Mr Meyers's room however still appeared dirty, cluttered and without a bed.
"the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. The process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiative of which is the sole prerogative of Parliament. It is essentially judicial process and, as such, it has to be undertaken in accordance with principle."
"a lawless void permitting Judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally towards unspecified categories of children or vulnerable adults (para 36)"
"The concept of the 'inherent jurisdiction' is by its nature illusive to definition. Certainly, it is 'amorphous' (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as 'pervasive'. But it is not 'ubiquitous' in the sense that it's reach is all-pervasive or unlimited. Precisely because it's powers are not based either in statute or in the common law it requires to be used sparingly and in a way, that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there."
(1) The inherent jurisdiction of the High Court for the protection of vulnerable and incapacity adults remains available notwithstanding the implementation of the Mental Capacity Act 2005: Re DL per McFarlane LJ (as he then was) at  et seq and Davis LJ at  et seq. In the memorable phrase first deployed by Lord Donaldson in Re F (Mental Patient: Sterilisation)  2 AC 1, it is "the great safety net".
(2) The jurisdiction extends to protecting vulnerable persons who do not fall within the categories of those covered by the Mental Capacity Act 2005: see, for example, Re DL itself and London Borough of Wandsworth v M & Ors  1 FLR 919;  EWHC 2435 Fam, and further to providing additional protection to adults lacking capacity within the meaning of the Mental Capacity Act 2005 when the remedy sought does not fall within those provided in the Act: see, for example, City of Westminster v IC  EWCA Civ 198 and NHS Trust v Dr A  EWHC 2442 COP
(3) As to the definition of vulnerability in these cases, the picture is comprehensively outlined in the judgment of Munby J in Re SA at paragraphs 77 and 78:
"It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is 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.
78. I should elaborate this a little:
i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact)  1 FLR 940. It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in In re T (Adult: Refusal of Treatment)  Fam 95, where a vulnerable adult's capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add ... that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others."
At paragraph 82 he added this:
"In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive."
(4) Insofar as such actions infringe with rights under Article 8 of the Human Rights Convention, the interference may be justified to protect the health of the individual but only if they are necessary and proportionate: see Re DL, Mcfarlane LJ at  and Davis LJ at .
(5) In an appropriate case, orders can be made depriving someone of their liberty under the inherent jurisdiction provided the exercise of the jurisdiction is compatible with Article 5 of ECHR: see Re PS (Incapacitated or vulnerable adult)  EWHC 623 Fam per MunbyJ.
(6) In cases involving incapacitated or vulnerable adults, Article 5(1) of the Convention provides, so far as relevant to this case:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:….(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants..."
Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
(7) "...[E]xcept in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the component national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends on the persistence of such a disorder..." Winterwerp v Netherlands  2 EHRR 387 at .
(8) Under Article 5(4), the lawfulness of the detention has to be reviewed under the principles set out in the Convention. It must therefore be wide enough to bear on those conditions that are essential for the lawful detention. In particular, with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement: see Winterwerp at  and Re PS at [20.
(9) As explained by Munby J in Re SA, the inherent jurisdiction in this context is exercisable not merely where a vulnerable adult is but also where he is reasonably believed to be incapacitated. Munby J added:
"... it has long been recognised that the jurisdiction is exercisable on an interim basis 'while proper inquiries are made' and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction." (Paragraph 80)
See also Re SK  EWHC 3202 Fam;  2 FLR 230 and London Borough of Wandsworth (Supra) at -. But, as McFarlane LJ pointed out in Re DL at :
"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."
(10) In exercising its powers as set out above, the court must attach due weight to the individual's personal autonomy. The court must, furthermore, be careful to avoid the so-called protective imperative to which I first referred in the case of CC v KK  EWHC 2136 (COP) at .
(i) The inherent jurisdiction may be deployed for the protection of vulnerable adults.
(ii) In some cases, a vulnerable adult may not be incapacitated within the meaning of the 2005 Act, but may nevertheless be protected under the inherent jurisdiction.
(iii) In some of those cases, capacitous individuals may be of unsound mind within the meaning of Article 5(1)(e) of the Convention.
(v) In exercising its powers under the inherent jurisdiction in those circumstances, the court is bound by ECHR and the case law under the Convention, and must only impose orders that are necessary and proportionate and at all times have proper regard to the personal autonomy of the individual.
(iv) In certain circumstances, it may be appropriate for a court to take or maintain interim protective measures while carrying out all necessary investigations.
"In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity."
"This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive." (my emphasis).
"Given [Mr Meyers] blindness, it is accepted by the applicant that he is a vulnerable adult."
Blindness as a 'description' of vulnerability is identified in the passages in Munby J's Judgment above. It appears that Ms Scott concedes that Mr Meyers falls within the category of vulnerability entirely in consequence of this disability. I do not consider, even for a moment, that Munby J's descriptive indications were intended to imply that all those who are blind are necessarily vulnerable and fall within the potential reach of the court's inherent jurisdictional powers. I doubt that Ms Scott is intending to do so either but her reasoning is, if she will forgive me for saying so, too reductive. I do not consider that it is the fact of Mr Meyers' blindness that renders him vulnerable. On the contrary, it struck me that he confronts it with courage and with the characteristic phlegmatism of his generation. The sight of one eye has been lost for medical reasons but Mr Meyers joked that he had simply 'outlived' the other eye. This signalled to me a resistance, on his part, to despondency and down heartedness and a resilience both to his blindness and to the privations of old age generally.
"The paradigm cases concern those who lack MCA capacity (ie are within the scope of the statutory scheme) but where there is a gap in the statutory scheme which leaves them without protection. In such cases the Court has held that it is appropriate to invoke the inherent jurisdiction. Examples of such cases are:
Westminster City Council v C  EWCA Civ 198 at paragraph 55 and 56 in which the Court invoked the inherent jurisdiction to grant relief that could not be granted under the MCA, in respect of an incapacitated adult.
A NHS Trust v Dr A  EWHC 2442 (COP) in which Baker J as he then was, invoked the inherent jurisdiction to make an order authorising the force-feeding and consequent deprivation of liberty of Dr A in circumstances where Dr A lacked MCA capacity to make decisions about his medical treatment but could not be provided with the treatment pursuant to the MCA, because he was ineligible to be deprived of his liberty pursuant to the statutory scheme.
The Court has also invoked the inherent jurisdiction to protect competent but vulnerable adults who, despite having MCA capacity, are 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: per Munby J in SA at paragraphs 77-78. [Emphasis added].
The High Court will in such cases in the first instance seek to exercise the inherent jurisdiction so as to facilitate the process of unencumbered decision-making by the adult, rather than taking the decision for or on behalf of the adult: In re L (Vulnerable Adults with Capacity: Court's Jurisdiction) (No 2)  EWCA Civ 253 (referred to as DL)
The last category of cases in which the inherent jurisdiction has been exercised is where it is exercised on an interim basis and while proper inquiries are made 'and while the court ascertains whether or not an adult is in fact in such as condition as to justify the court's intervention' – Re SA paragraph 80, 89 - 90 and 95."
Article 5 of the ECHR. Article 5(1) provide:
"Everyone has the right to liberty and security of the person. No one
shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(e) the lawful detention … of persons of unsound mind."
'The second issue this document addresses is in respect of the proposition put to the applicant during the hearing that if the Court were to discharge the injunction requiring Mr Douglas Meyers to live in a particular care home, but kept in place the injunctions preventing him from returning to his own home or living with KF, he would not be deprived of his liberty. In oral submission, it was accepted by the applicant that this would not amount to a deprivation of liberty. (my emphasis)
On further reflection the applicant submits that such a situation may in fact amount to a deprivation of liberty:
a) 'The objective element for a deprivation of liberty may be made out in such circumstances. Mr Douglas Meyers' concrete situation may in fact be (if for example his only option as a result of the orders was to live in a care home) that he is not free to leave that accommodation and is under continuous supervision and control (this may arise as a result of his care needs or in order to ensure that he does not breach the injunctions).
b) The subjective element would be made out, in that Mr Meyers would not be consenting to living in the care home. He would be prevented from living in his own home, where he wishes to live, as a result of the injunctions. He would be forced to live in the care home as he is unable to return to the only other accommodation available to him by dint of the injunctions.
c)His residence in the care home would be imputable to the state, because this situation arises only as a result of the Court injunctions.'
"(i) DM has MCA capacity to make decisions about his residence;
(ii) DM is prevented from exercising that capacity in relation to living with KF by reason of the emotionally dependent relationship they have;
(iii) the consequence of (ii) is that DM risks his life in living with KF at the bungalow;
(iv) the court can by reason of (ii) and (iii) exercise the IJ to protect DM;
(v) any order which the court makes, under the IJ, which either directs DM to live at a particular place or prevents DM from living at a particular place is likely to amount, in concrete terms, to the same thing, which is that DM would not be free to leave the care home and so article 5 would be engaged by either an order directing him to live at a particular place or by an order preventing him from living at a particular place;
(vi) that legal position cannot be avoided by an order that DM is prevented from living with KF (as is suggested by the LA in its suggested amendments to the draft judgment) as in concrete terms that still means he would not be free to leave the care home as KF would remain in the bungalow;
(vii) that legal position could be avoided (and article 5 would not be engaged) if the court makes orders against KF instead that he should not live at the bungalow and/or live with DM. That would also accord with (ii)-(iv) above, which are his Lordship's conclusions on the IJ issue."
"80. It reiterates at the outset that in proclaiming the "right to liberty", paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Guzzardi, cited above, §§ 92-93; Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012; Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; and Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010). Furthermore, an assessment of the nature of the preventive measures provided for by the 1956 Act must consider them "cumulatively and in combination" (see Guzzardi, cited above, § 95).
81. As the Court has also held, the requirement to take account of the "type" and "manner of implementation" of the measure in question (ibid., § 92) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, mutatis mutandis, Austin and Others, cited above, § 59)."
"93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 (art. 5) depends.
94.As provided for under the 1956 Act (see paragraphs 48-49 above), special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5 (art. 5). The Commission acknowledged this: it focused its attention on Mr. Guzzardi's "actual position" at Cala Reale (see paragraphs 5, 94, 99, etc. of the report) and pointed out that on 5 October 1977 it had declared inadmissible application no. 7960/77 lodged by the same individual with regard to his living conditions at Force (see paragraph 93 of the report and paragraph 56 above).
It does not follow that "deprivation of liberty" may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered (see paragraph 88 above).
88.Without losing sight of the general context of the case, the Court recalls that, in proceedings originating in an individual application, it has to confine its attention, as far as possible, to the issues raised by the concrete case before it. Accordingly, the Court's task is to review under the Convention not the 1956 and 1965 Acts as such - the principle underlying them was anyway not challenged by the applicant - but the manner in which those Acts were actually applied to Mr. Guzzardi, namely the conditions surrounding his enforced stay on Asinara from 8 February 1975 until 22 July 1976 (see the above-mentioned Deweer judgment, p. 21, par. 40, the Schiesser judgment of 4 December 1979, Series A no. 34, p. 14, par. 32, etc.; cf. the above-mentioned Ireland v. the United Kingdom judgment, p. 60, par. 149)."
"92. The Court recalls that in proclaiming the "right to liberty", paragraph 1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by Italy. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 (art. 5), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59)."
"The Court reiterates that Article 5 § 1 protects the physical liberty of the person (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281-A). In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 of the Convention, the starting-point must be his concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the impugned measure. The purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention. Article 5 § 1 may also apply to deprivations of liberty of a very short length (see Creangă v. Romania [GC], no. 29226/03, §§ 91-93, 23 February 2012)."
"45. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage."
"Liberty means the state or condition of being free from external constraint. It is predominately an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity."