Case No.2000/0094 

IN THE SUPREME COURT OF JUDICATURE      
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr. JUSTICE JOHNSON

Royal Courts of Justice
Strand, London WC2A 2LL

Monday 26th June 2000

Before:

THE PRESIDENT

LORD JUSTICE THORPE
and
LORD JUSTICE SEDLEY
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In the matter of F (Adult Patient)

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 (Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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Mr. Richard Gordon Q.C. and Mr. Paul Bowen appeared on behalf of the Appellant
Mr. Nigel Pleming Q.C. and Miss Fenella Morris appeared on behalf of the 1st Respondent
Mr. Roger McCarthy Q.C. and Mr. Nicholas O’Brien appeared on behalf of the Offical Solicitor
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Judgment
The President:  T  is 18, having been born on the 15th November 1981. For the purposes of this appeal on jurisdiction the parties have agreed that she lacks the capacity to make decisions as to her future and that the allegations made by the local authority as to the mother`s care of T are correct. She is said to have an intellectual age of 5 to 8 years old. The local authority placed her in local authority accommodation for those with mental handicap just before her 17th birthday with the consent of her parents. That consent is now withdrawn. The local authority therefore seek declarations, the effect of which is intended to keep her in similar accommodation and to restrict and supervise her contact with her natural family, principally her mother. Her mother opposes the local authority plan and alleges that the court does not have jurisdiction to make the declarations sought. The Official Solicitor acts as guardian and seeks an investigation of the issues surrounding the best interests of T.

There is a long and complicated history of the family and the steps taken by the local authority to deal with the deficiencies in the care and upbringing of T and her 7 younger brothers and sisters. The father was 75 at the date of his death in 1999. The mother is 49 or 50. They married in 1984. The case for the local authority disclosed a picture of chronic neglect, a lack of minimum standards of hygiene and cleanliness in  the home, a serious lack of adequate parenting and worrying exposure to those engaged in sexual exploitation and possible sexual abuse of one or more of the children including T. The 8 children were said to be suffering significant harm and at risk of so doing, based upon these numerous allegations. The local authority appears to have moved rather slowly in responding to the needs of this family. Proceedings were not issued until November 1998 when emergency protection orders were obtained in respect of all 8 children.  The 7 younger children are now in the care of the local authority by order of the court in November 1998 as ultimately conceded by the mother. T was over 16 and was therefore accommodated on a voluntary basis and she and two of her sisters were placed in a specialist children`s home. In December 1998 a consultant paediatrician formed the view after examination of  T that she had suffered penetrative sexual abuse. On the 17th February 1999 the parents withdrew their consent to her remaining in the children`s home. The local authority then applied to the county court for an order under section 29 of the Mental Health Act 1983, (the 1983 Act). The application was granted by His Honour Judge Graham on the 25th February 1999. On the 30th September 1999 the Court of Appeal allowed the appeal some 6 weeks before her 18th birthday and set aside the guardianship order. The judgment of this Court is reported as Re F (Mental Health Act: Guardianship) [2000] 1FLR 192. 

Shortly after the decision on appeal the father died but the mother has continued to seek the return home of her eldest daughter. Once T  became 18 the wardship jurisdiction was no longer available. The local authority then made the present application invoking the inherent jurisdiction of the High Court. On the 18th January 2000 Johnson J heard a preliminary issue as to whether the High Court has jurisdiction to hear a claim for declaratory relief pursuant to RSC Order 15 r 16 in the circumstances of this case. He held that there was jurisdiction and gave permission to appeal to this Court. If there is jurisdiction to grant declaratory relief, the substantive hearing is fixed for the end of this month.

The Mental Health legislation (Guardianship)
The Mental Health Act 1959, (the 1959 Act) set out the statutory framework for the care of mentally incapacitated adults. In passing it, Parliament allowed the parens patriae jurisdiction of the High Court to lapse. 

The 1959 Act made provision for guardianship orders. Under s 33 of that Act a guardianship application might be made in respect of a patient on the grounds: 
“…… that he is suffering from mental disorder, being ….. in the case of a patient under the age of 21 years, psychopathic disorder or subnormality; and that his disorder is of a nature or degree which warrants the reception of the patient into guardianship under this section.”  (See s 33(2)(ii).)

A guardianship order, if made, gave the guardian the powers of a father over a child under 14.  Amongst specific powers, reg 6(2) of the Mental Health (Hospital and Guardianship) Regulations 1960 provided that:
‘…. The guardian may restrict to such extent as he thinks necessary the making of visits to the patient and may prohibit visits by any person who the guardian has reason to believe may have an adverse affect on the patient.’

Those provisions might well have been sufficient to meet the needs of T as set out by the local authority. The guardianship provisions were however perceived not to have worked well. The review of the Mental Health Act 1959 in September 1978 (Cm 7320) offered three options for the revision of the statutory regime. The publication of Cm 8405 in November 1981 revealed that the government had decided on the third option, namely the limitation of the powers of the guardian to three following essentials:
(a)	the power to require the patient to live at a specified place;
(b)	the power to require the patient to attend specified places for the purpose of treatment, occupation or training;
(c)	the power to ensure that a doctor, social worker or other specified person could see the patient at home.
In introducing these changes contained in the Mental Health (Amendment) Bill on 19 January 1982, Lord Elton explained that the term ‘subnormality’ was to be replaced with the term ‘mental impairment’.  He continued:
“Having provided the substitute term, we had next to ensure that it was not going to be used to describe any people other than the small group to whom we wished it to apply.  We therefore attached to it the requirement that, where the Act is to have effect upon a mentally impaired or severely mentally impaired person, that impairment must be, “associated with abnormally aggressive or seriously irresponsible conduct”.
We have tried in this phrase not only to establish the requirement that the behaviour of the person to whom the Bill applies shall be aggressive or irresponsible but that it shall be aggressive or irresponsible to a marked degree.  We did so by using the adjectives “abnormally” and “seriously”.  We did so after a long dictionary search and a good deal of discussion …. I do not think we can get any closer to expressing our intention, which is to limit the effect of the Bill and the Act on mentally handicapped people to those very few people for whom detention in hospital is essential so that treatment can be provided and for whom detention in prison should be avoided.  That is the interpretation we intend to be put on these words.  The revised definitions, and the interpretation I have just outlined, extend also of course to powers to receive people into guardianship.”

The Mental Health (Amendment) Act 1982, (the 1982 Act) incorporated those provisions which were subsequently consolidated into the 1983 Act.
The sections of the Mental Health Act 1983, (which now governs mental incapacity) with which this Court is principally concerned are:
“(1) The provisions of this Act shall have effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters.
(2)In this Act –
“mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and “mentally disordered” shall be construed accordingly;
“severe mental inpairment” means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and  “severely mentally impaired” shall be construed accordingly;
“mental impairment” means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “mentally impaired” shall be construed accordingly;
“psychopathic disorder” means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
7(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section.
(2) A guardianship application may be made in respect of a patient on the grounds that –
(a) he is suffering from mental disorder, being mental illness, severe, mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and 
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.
8(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person –
(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.
29(1)  The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and section 66 and 69 below shall, during the continuance in force of the order, be exercised by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient’s nearest relative and is willing to do so.
(2)	An order under this section may be made on the application of-
(a)	any relative of the patient;
(b)	any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or
(c)	an approved social worker, but in relation to an application made by such a social worker, subsection (1) above shall have effect as if for the words “the applicant” there were substituted the words “the local social services authority”.
(3)	An application for an order under this section may be made upon any of the following grounds, that it to say –
(d)	that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient;………”

In the first re F hearing, (above) this Court held that a restrictive construction of mental impairment under section 1(2) of the Mental Health Act 1983 was to be preferred. The desire of T to return home to her mother did not constitute seriously irresponsible conduct within the meaning of section 1(2) and she did not fulfil the criteria required by the relevant provisions. The Court also indicated that wardship was the more appropriate remedy. This Court has therefore decided that T does not come within the guardianship provisions enacted in the 1983 Act. 

The House of Lords, in re F (Mental Patient: Sterilisation) [1990] A.C. 1, identified areas in which the 1959 Act did not meet the day to day needs of such adults who are unable to make decisions for themselves and applied the common law doctrine of necessity to meet by way of declarations the most important and pressing of those needs. In a series of cases since 1990 the courts have defined areas in which the doctrine of necessity should be applied for the benefit of the patient. In the exercise of the inherent jurisdiction the High Court has granted declaratory relief that medical intervention in irreversible, life threatening or other serious situations was lawful. The Law Commission, in its Report `Mental Incapacity` (1995 Law Com No 231) set out comprehensive suggestions for the reform of the law covering mentally incapacitated adults. The Government in the Consultation Paper `Who Decides? Making Decisions on behalf of Mentally Incapacitated Adults` (1997 Cm 3803) and in `Making Decisions` the Governments`s response to the Consultation Paper, has put forward a detailed blue print to meet those needs by providing suitable and comprehensive safeguards to protect the welfare of this vulnerable section of the community. The law has so far not been amended and the High Court continues to be asked to make and does make declarations in appropriate cases. The main issue in the present appeal is whether the doctrine of necessity embraces the problems that arise on the facts of this case.

The course of the Mental Health legislation and the marked reduction in the circumstances in which a guardianship order may now be made are however relevant to the submissions made to us by Mr Gordon QC for the mother. He sought an order setting aside the order of Johnson J and striking out the claim of the local authority as disclosing no reasonable cause of action. He accepted, for the purpose of the appeal only, that T did not have the mental capacity to decide where her future home should be, although the mother`s view was that she did have that capacity. He also accepted, for the purpose of the appeal, the allegations made about the previous care of T by her family. Those allegations would however be in dispute if the matter went to a substantive hearing. Mr Gordon agreed that the local authority had the locus standi to bring proceedings but submitted that the court did not have the jurisdiction to make a declarations the effect of which would be coercive and which would require T to live as directed by the local authority, and which also would give the local authority control over whom T met and the circumstances of such contact. Having failed in the guardianship application the local authority was bringing the present proceedings in order to achieve the same result. Currently, pending the outcome of this appeal, the mother`s contact to her daughter was twice weekly and supervised. 

He argued that there were three routes to achieve the result sought by the local authority:
1.	a statutory justification
2.	wardship
3.	the doctrine of necessity

1. Statutory Justification
Mr Gordon submitted that the exercise of the court`s jurisdiction to grant declarations was dependent upon the existence of some right on the part of the local authority which in effect wished to invoke an immunity against liability if it detained T in a local authority home; prevented her from returning to live with her mother and regulated her relationship with her natural family. A local authority was a creature of statute and there was no statutory justification for the control sought by the local authority to restrict where T should live or who should contact to her. Although the local authority had duties under the philosophy of `care in the community`, the care was voluntary and not directive. The wide provisions contained in the 1959 legislation had been repealed and a guardianship order under the 1983 Act had been refused. There was no other effective statutory control under the mental health legislation, except under section 135 of the 1983 Act which was limited to 72 hours or section 47 of the National Assistance Act 1948 with similar limited powers, after which the same problem would again arise. 

2.Wardship
Wardship would not apply to T after the age of 18.

3.Doctrine of necessity
The common law doctrine of necessity was ousted by the decision not to extend the former parens patriae jurisdiction which lapsed in 1959 in respect of adults. That jurisdiction was replaced by the structure put in place in the 1959 Act and in particular the provisions for guardianship. It was the deliberate decision of Parliament to reduce the ambit of guardianship in the 1982 and 1983 Acts and the curtailment of the guardianship regime by the Acts of 1982 and 1983 had the effect of excluding T from its provisions. It also ousted the common law doctrine of necessity.  The courts were therefore unable to fill a gap caused by statutory amendments. There was no place in the present situation for the doctrine of necessity, which, if applied, would trespass upon and indeed usurp the will of Parliament.

In so far as the courts did have inherent jurisdiction, it was limited and did not extend to a far wider group of cases for which there was no justification. It was a fundamental part of the mother`s case that her daughter was non-compliant. He relied upon the express wishes of T to return to live with her mother and submitted that T was a non-compliant mentally incompetent adult who would not voluntarily remain in local authority care. He saw no difficulty in the use of an advisory declaratory procedure. The objection was to the making of declarations in circumstances where the effect of the declarations would be coercive. The coercive declarations claimed and which would be needed to keep her in local authority accommodation did not fall within the ambit of the doctrine of necessity as set out in re F [above]  and subsequent cases. He drew a distinction between the declarations granted in the medical cases for purposes of declaring the lawfulness of operating upon a patient for instance for sterilisation, caesarean section or hysterectomy, an issue which was capable of resolution at the time of the hearing and declarations seeking long-term intervention without limit of time and without a clear view of future requirements for that person.   He accepted that there was no difference in principle between a statutory body and an individual. He recognised that there was a serious gap in the legislation as a result of which the problem of T`s residence could not be resolved by anyone, but, he argued, this was a matter for Parliament to fill that gap.

Neither the local authority nor the Official Solicitor on behalf of T accepted that her wishes were clearly to return to her mother. That is one of the matters in dispute. The strength of her wishes and the extent to which they might be influenced by the mother would have to be determined by the trial judge if this appeal is dismissed.
Mr Pleming QC for the local authority reminded the court that the objective of the local authority was solely to provide for the best interests of T. He submitted that T`s wishes should be treated with  great caution. History showed that, left to herself, T was in fact compliant. He submitted that the doctrine of necessity operated on a day  to day  basis in making ordinary decisions for the care and protection of an incapable adult from the most trivial to the most significant, including the giving of treatment and the administering of medication. In most of them decisions were made without recourse to the courts. Those decisions were made by hospital staff, members of the family and often local authority paid carers without the powers of guardians as in R v Bournewood Community and Mental Health NHS Trust ex parte L [1999] A.C. 458. In each case the duties carried out for the patient invoked the doctrine of necessity. In the present case it was necessary for a decision to be made as to where T should live and that decision required the intervention of the High Court.

Mr McCarthy QC, instructed by the Official Solicitor on behalf of T, submitted that the court was not constrained by the wording of the declarations sought by the local authority and could make declarations more suited to facts as they emerged. An advantage of declarations was that it might very well dampen down the dispute and after they were made they might resolve the problem between the parties. Therefore he did not accept that declarations needed to have coercive effect. It was impossible to say where parties might stand at the end of the litigation. But at this stage the coercive effect asked for would be necessary although not necessarily in the end result. Declarations offered a flexible remedy. They have been used to meet a new situation and one not previously contemplated. Representing as he did T he placed emphasis upon her wishes and would seek an investigation into T`s true wishes and how far she had a capacity to understand the issues affecting her well-being. If it is found that she does not have capacity and there is no decision by the court as to where in her best interests she should live, T would be placed in an impossible position. She has the right to have care taken of her and not to have that right taken away. The court can now make interim declarations under the Civil Procedure Rules and it would be useful for the High Court to make findings of fact as to where her best interests lie. There were also difficult issues over contact which might involve the impact on T of flouting her wishes, the recognition of her autonomy and her right to association with her family. The Official Solicitor was concerned to have a substantive hearing to obtain findings of fact on the outstanding issues.

The judge concluded:
That there is jurisdiction to entertain an application such as that made by  the local authority, albeit I would expect that the jurisdiction is one that would be exercised conservatively….”

Conclusions
I agree with Mr Gordon that the first two of his routes are unavailable. 
The local authority has no statutory power, in the absence of a guardianship order, to direct where T lives. If there is no recourse to the doctrine of necessity, the court has no jurisdiction to make any declarations to enable the local authority on the present facts to regulate the future arrangements for T. In my view, T`s mother has only limited rights as such to make similar decisions for T but equally the local authority has no right to retain T if she wants to go home and her mother arrives to collect her. Clearly wardship cannot apply since T is over 18.    
The only possible route is by the doctrine of necessity. In my view there are three questions to be answered in respect of the inherent jurisdiction of the High Court.
1.	Do the present facts demonstrate a situation in which the doctrine of necessity might arise, that is to say a serious justiciable issue that  requires resolution in the best interests of an adult without the mental capacity to decide for herself?
2.	Has recourse to the inherent jurisdiction been excluded by the statutory framework of the Mental Health legislation?
3.	If the doctrine of necessity is not excluded, does the problem arising on this appeal come within the established principles so as to give the court jurisdiction to hear the issue of T`s best interests and to grant declarations?

1. It is clear that there are two competing views on the future residence of T. She does not have the capacity to make that decision herself. The views of the mother and the local authority appear at present to be irreconcilable, although Official Solicitor`s view is that a court decision setting out the best interests of T might resolve the conflict. Her welfare is in dispute and, if the case of the local authority is made out, T would be at risk of significant harm to a degree that, had she been under 17 she would have been likely to be the subject of a care order under section 31 of the Children Act 1989 as are her 7 siblings. In re S (Hospital Patient: Court`s Jurisdiction) [1996] Fam. 1 Sir Thomas Bingham MR at page 18 reviewed the declaratory jurisdiction in respect of those without the ability to make decisions in their best interests. He said:
“The consequence of this inability is not that the treatment of patients is regarded by the courts as a matter of indifference, nor that patients are regarded as having no best interests. Instead, in cases of controversy and cases involving momentous and irrevocable decisions,the courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify. In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal.”
    
I have no doubt that, in the case of T, there is a serious justiciable issue which, subject to the other two questions, requires a decision by the court.

2. Mr Gordon`s argument that the exercise of the inherent jurisdiction is excluded by the statutory framework of the Mental Health legislation requires careful consideration. If Parliament had legislated in 1959 to cover all eventualities for a patient subject to the guardianship regime, and then decided in 1982 to restrict the categories of those who would in future come within the definition of a patient, the courts would clearly have no power to intervene nor, by the exercise of the inherent jurisdiction, to regard T as if she were a patient. When, however, one analyses the guardianship provisions contained in the 1959 Act, they were clearly neither comprehensive nor exhaustive and did not cover a multitude of every day activities in which decisions are made on behalf of a person unable to decide for him/herself. Mr and Mrs E, the paid carers employed to look after L in Bournewood, were in that category. As Mr Pleming QC for the local authority pointed out, they did not have any legal control over L but cared for him and made decisions for him on a daily basis. The effect of the 1982/3 amendments was, inter alia, to reduce the number of people susceptible to the guardianship regime. It did nothing to change the situation of the day to day care of the mentally incapable adult. In Black v Forsey [1988] S.C. (H.L.) 28, the House of Lords held that the common law could not be invoked to fill a lacuna in the Mental Health (Scotland) Act 1984 because the powers of detention in the Act were intended to be exhaustive. The English Mental Health legislation does not cover the day to day affairs of the mentally incapable adult, and the doctrine of necessity may properly be invoked side by side with the statutory regime, see re F (above) and Bournewood (above). In Bournwood the House of Lords held that the doctrine of necessity in relation to informal patients was preserved by section 131 of the 1983 Act. In doing so Lord Goff of Chievely relied upon the common law principles set out in re F. He said at page 485:
“I turn briefly to the basis upon which a hospital is entitled to treat, and to care for, patients who are admitted as informal patients under section 131(1) but lack the capacity to consent to such treatment or care. It was plainly the statutory intention that such patients would indeed be  cared for, and receive such  treatment for their condition a might be prescribed for  them in  their best interests. Moreover the doctors in charge would, of course, owe a duty of care to such  a patient in  their care. Such treatment and care can, in my opinion, be justified on  the basis of the common law doctrine of necessity, as to which see the decision of  your Lordship`s House in re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1. It is not therefore necessary  to find such  justification in  the statute itself, which is silent on  the subject. It might, I  imagine, be possible to discover an implication in  the statute providing similar justification, but even  assuming that to be right, it is difficult to imagine any different result would flow from such  a statutory implication. For present purposes, therefore, I think it  appropriate to base justification for treatment and care of such patients on  the common law doctrine.”

In  the light of Bournewood, Mr Gordon`s reliance upon Black v Forsey to support his contention that the inherent jurisdiction cannot be invoked in the present case is misplaced.  The jurisdiction of the High Court to  grant relief by  way of declarations is not therefore, in my view, excluded by the present statutory regime under the 1983 Act. 

3.There is an obvious gap in the framework of care for mentally incapacitated adults. If the court cannot act and the local authority case is correct, this vulnerable young woman would be left at serious risk with no recourse to protection, other than the future possibility of the criminal law. That is a serious injustice to T who has rights which she is unable, herself, to protect. Lord Donaldson M.R in re F in the Court of Appeal said:
“…..the common law is 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. This process of using the common law to fill gaps is one of the most important duties of the judges.”

Mr Gordon has nonetheless argued that to fill that gap, even where the doctrine of necessity is not in principle excluded, is a step too far. Although the decision of this Court in re S (above) turned upon the locus standi of the claimant, the underlying issue, recognised by Counsel and by this Court was the best interests of S. When the matter was remitted to Hale J (as she then was) for decision, the question that she answered was his future residence, see re S (Hospital Patient: Foreign Curator) [1996] 1 F.L.R.167.  Lord Goff in Bournewood recognised, (at page 490), that the concept of necessity had a role to play in all branches of the law where obligations existed and was therefore a concept of great importance. In re S the Master of the Rolls set out the long-established power of the High Court to grant declarations in a wide variety of situations and to assume jurisdiction if there is no practicable alternative. He looked at the line of medical and similar cases and said at page 18:
“Collectively, these cases appear to constitute the development of a new advisory declaratory jurisdiction.”

In re C (Mental Patient: Contact) [1993] 1 F.L.R. 940, one of the cases referred to by Sir Thomas, there was a dispute between the parents of an adult mentally incapacitated girl over contact between her and her mother. Eastham J held at page 945 that:

“ in an appropriate case, if the evidence bears out the proposition that access is for the benefit of the patient in  this case, S, I see no reason at all why  the court should not grant access by  way of a declaration.”

In both re C and re S the declarations sought were in support of identifying the best interests of an incapable adult where individuals around him or her were in conflict over his/her future welfare. The application for declaratory relief in the present appeal is between a local authority and a mother but, as Mr Gordon accepted in principle, there is no distinction to be drawn between a local authority and an individual. A declaration is, in many ways, a flexible remedy able to meet a variety of situations. In the present conflict, where serious question marks hang over the future care of T if returned to her mother, there is no practicable alternative to the intervention of the court. The declarations sought by the local authority may require alteration according to the facts found by the judge, but he would have the jurisdiction to vary them to meet the situation after those findings were made. There is the possibility that the judgment itself might resolve the situation. If it does not and declarations are required which determine where T should live, there is nothing in principle to inhibit a declaration that it was in her best interests that she should live in a local authority home and should not live anywhere else, nor, while she was in the home to regulate the arrangements for her care and as to with whom she might have contact. Such were the implications  of the second stage of re S before Hale J and of re C (above).
I am clear that it is essential that T`s best interests should be considered by the High Court and that there is no impediment to the judge hearing the substantive issues involved in this case.
    
The assumption of jurisdiction by the High Court on a case by case basis does not, however, detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults, particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults. Until Parliament puts in place that defined framework, the High Court will still be required to help out where there is no other practicable alternative. 
I agree with the judgments of Thorpe LJ and Sedley LJ which I have read in draft and endorse in particular the observations of Sedley LJ on the issues raised under the Convention.

I would dismiss the appeal.
 
Lord Justice Thorpe:  This judgment is a sequel to the judgment which I wrote on an earlier appeal in this case reported as Re F (Mental Health Act: Guardianship) [2000] 1 FCR 11.  That judgment decided that Hackney, in its laudable effort to protect T, had chosen the wrong legal route.  The conditions for entry into the regime of guardianship were not met.  In reaction to the judgment Hackney issued an originating summons in wardship but, on the almost immediate expiration of T’s minority, it was necessary to endeavour to continue protection by application for declaratory relief, the parens patriae jurisdiction to protect incapacitated adults having inadvertently disappeared as a consequence of the enactment of the Mental Health Act 1959.

In my earlier judgment at 19F I said:
“It is not necessary in this case to draw a comparison between the guardianship regime under the Mental Health Act and the jurisdiction of the Family Division to make a best interest declaration in respect of an adult patient.  Mr Pleming has quite rightly referred to the decisions in Re C (Mental Patient: Contact) [1993] 1 FLR 940 and Cambridgeshire County Council v R (An Adult) [1995] 1 FLR 50.  In the later case Hale J drew attention to the limitations on the court’s powers in determining an application for a best interest declaration.”

Having cited from Hale J’s judgment we echoed the view that she and Eastham J had expressed that the inherent powers of the Family Division judge should be extended to meet gaps in the statutory regime provided by the Mental Health Act 1983.

This sequel requires precisely that comparative investigation of the statutory powers and the inherent powers in the light of the uncertainties that the first judgment emphasised.  It is perhaps not surprising that Mr Gordon QC renewed his challenge to the legality of Hackney’s provision for T as soon as she attained her majority and the wardship jurisdiction determined.

There can be no doubt that Mr Gordon is right in submitting that Hackney’s determination to provide accommodation for T and to restrict her contact with her mother cannot be justified under any statutory enactment or under the parens patriae power.  His submission that the common law doctrine of necessity cannot be extended to meet the circumstances of this case is a powerful one.  He points to its origin in the decision of the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and to its subsequent development in cases of medical emergency.  He submits that it has not been and should not be extended beyond the power to declare lawful focal medical decisions to provide the medical team with immunity from criminal or tortious liability.  But his principal and most powerful submission is that Hackney are seeking to exercise powers of guardianship over T which were deliberately removed by parliament when the Mental Health (Amendment) Act 1982 (subsequently consolidated in the Mental Health Act 1983) substituted for the guardianship powers contained in the 1959 Act (powers of a father over a child under 14) the three specific powers: namely to reside at a specified place, to attend at specified places for specified purposes and to require access to the patient for specified persons.  He therefore submits that where parliament has made such a deliberate and wholesale curtailment, the court cannot assume an inherent power to restore what parliament has removed, particularly at a time when the government is currently reviewing the operation of the 1983 Act with a view to its reform.  In support of this submission he relies upon the speech of Lord Keith in Black v Forsey [1988] SLT 572 at 580.  He further claims support from the more recent decision of R v Bournewood Community and Mental Health NHS Trust Ex Parte L [1999] AC 458.

Mr Pleming’s contrary submission is that case law since the decision of the House of Lords in Re F in 1990 demonstrates that the inherent jurisdiction exists to declare not just what is lawful but also what is in the best interests of the incapacitated adult wherever it is demonstrated that such a declaration is necessary.  He too relies on the decision of the House in the Bournewood appeal but particularly on the decision of this court in Re S (Hospital Patient: Court’s Jurisdiction) [1996] FAM 1.

Mr McCarthy QC on T’s behalf takes an independent line but above all seeks the investigation of the issues and the determination of the application for declaratory relief by Johnson J at the fixture later this month.

The full and skilful argument that this appeal has received demonstrates that the anxiety expressed by Eastham J and Hale J in 1993 and 1995 respectively has been met, at least in part, by a combination of incremental extension and procedural reform.  Procedurally declarations were rightly seen as too rigid to meet the changing circumstances and needs of the patient.  But that problem has been alleviated in part by the Civil Procedure Rules which have introduced the power to make interim declarations.  An analysis of the authorities cited reveals the incremental extension.

In recent decisions of this court we have emphasised that where the inherent jurisdiction is established it is a jurisdiction to declare the best interests of the patient on the application of a welfare test analogous to that applied in wardship.  That is clear from the decision in Re A [2000] 1 FCR 193 and from the more recent decision of SL handed down on 18th May.  But although those authorities establish the function of the court where jurisdiction is conceded they offer no guide as to the extent of the jurisdiction when it is disputed.

The determination of the ambit of the jurisdiction commences with the decision in Re F and the speech of Lord Goff.  It is significant to see that amongst the illustrations that he offered is the case of permanent or semi-permanent mental disorder calling for a wider range of care.  He said at 76G:
“When the state of affairs is permanent, or semi-permanent, action properly taken to preserve the life, health or well being of the assisted person may well transcend such measures as surgical operation or substantial medical treatment and may extend to include such humdrum matters as routine medical or dental treatment, even simple care such as dressing and undressing and putting to bed.”

In his speech in the Bournewood case in considering the treatment and care of informal patients he said at 485G:
“It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests.  Moreover the doctors in charge would, of course, owe a duty of care to such a patient in their care.  Such treatment and care can, in my opinion, be justified on the basis of the common law doctrine of necessity, as to which see the decision of your lordships house in Re F.  It is not therefore necessary to find such justification in the statute itself, which is silent on the subject.”

At the conclusion of his speech at 490B-D Lord Goff recorded that the common law doctrine of necessity does not find its origin in Re F but had been recognised in 18th and 19th century authority establishing the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others insofar as this was shown to be necessary.  He then expressed his opinion that the concept of necessity was one of great importance flourishing in all the branches of the law of obligations  Equally Lord Nolan in his speech emphasised the obligation on the hospital to protect the patient from harm and to prevent him from leaving until judged fit to do so.

Mr Gordon relies particularly on the speech of Lord Steyn which he says established what has been subsequently labelled the “Bournewood gap”, namely the exposure of compliant incapacitated patients to treatment given in good faith but without any of the safeguards enshrined in the Mental Health Act 1983.  But in expressing his concerns Lord Steyn recognised the width of the common law doctrine of necessity to which provisions in the code of practice would have to yield.

These citations persuade me that the common law doctrine is not necessarily excluded by the principle asserted by Mr Gordon.

I am even more encouraged to the rejection of an outcome which I regard as unpalatable by the judgment of Sir Thomas Bingham MR in Re S.  In a series of numbered paragraphs he summarised the effect of the development of the declaratory jurisdiction over the preceding decade.  Within this analysis is the following statement:
“In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal.”

Of course Mr Gordon presents his client as the protector of T against unwanted and coercive detention as well as against the restriction of her natural right of association with her mother.  Mr Pleming’s contrary presentation is that unless Hackney provide T with protective accommodation and shield her from her mother’s persuasion she will be victimised both sexually and emotionally.  Those are amongst a wide range of conflicts that Johnson J has planned to investigate at the fixture.  It would in my opinion be a sad failure were the law to determine that Johnson J has no jurisdiction to investigate, and if necessary, to make declarations as to T’s best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.  Of course regimes of guardianship whether statutory or inherent in their foundation can be operated so as to impinge upon or deny the rights of the individual.  To minimise that risk powers contained in the 1959 Act were drastically reduced and both in statute and in codes of practice safeguards are declared for the protection of the individual against error, abuse or excess in the protector.  In my judgment it cannot follow that that reduction intended to benefit patients must operate consequentially to deny patients the protective aspects of guardianship which the common law is able to furnish through the application and, if necessary, the extension of declaratory relief justified by the common law doctrine of necessity.

I do not ignore the reality that if Mr Pleming’s submission is accepted at its most liberal the consequence would be to have restored more or less the parens patriae jurisdiction, albeit re-labelled.  I would not wish this judgment to be so understood.  As in my previous judgment in this case I emphasise that it is a judgment upon the particular assumed facts.  Nor do I express any view upon the form of the declarations sought.  Plainly substantial amendment is required to the present draft.  But that is better left until Johnson J has completed his investigation.  All I would wish to decide is that Mr Gordon’s challenge to Johnson J’s jurisdiction to conduct that investigation plainly fails.  I would dismiss this appeal and uphold the judgment below.

Since writing the above judgment I have had the opportunity of reading in draft the judgments of the President and of Sedley LJ.  I agree with both.  I would particularly wish to adopt Sedley LJ’s judgment on Article 5 and 8 of the European Convention on Human Rights, expressed with a clarity that I could not match.

Sedley L.J.  I agree with both judgments. I add a word of my own because we are breaking new ground on terrain which is partly constitutional. 

The critical question is whether the space created by the amending Act of 1982 and now consolidated in the 1983 Act represents a legislative policy which the courts must respect or a lacuna which they may fill. It is a question which cannot be answered in the abstract. Nor, as I think, is there a single answer which will necessarily be good once and for all time.

Seen in their time and place, the association of severe mental impairment with abnormally aggressive or seriously irresponsible conduct and the inclusion in the powers of guardianship of authority to determine a patient’s place of residence are aspects of a legislative policy which was designed to cut back the scope of state intervention in the lives of the mentally impaired. The first aspect has the established consequence in T’s case that she is not in statutory terms a patient. The second, in Mr Gordon’s cogent submission, has the further consequence that despite her severe mental incapacity the common law cannot now intervene as if she were a patient: whatever the scope of necessity, it cannot enable the courts to enter terrain which has been occupied by Parliament.

This is the mother’s only possible answer to the local authority’s proposal, for the present case, if the assumed facts are made out, is a strong case of necessity: T is so unable to judge what is in her own best interests that no humane society could leave her adrift and at risk simply because she has reached the age of 18. If returning to her mother is in truth a source of danger to her, I agree that, absent any statutory inhibition, the court may, by declaring what is in T’s best interests, sanction not only the provision of local authority accommodation (which in any case needs no special permission) but the use of such moral or physical restriction as may be needed to keep T there and out of harm’s way. 
That the court has such power is shown most sharply, I think, by the President’s question to Mr Gordon: what if the dispute as to T’s best interests were between her mother and an older sister? There, said Mr Gordon, the court would be able to adjudicate because a sister’s powers, unlike a local authority’s, are not limited by statute. This, with respect, cannot be an answer. It begins by conceding – rightly – that the court has power to resolve such a dispute in T’s best interests; but it then seeks to draw a distinction of status unrelated to those interests. 

The correct view, it seems to me, is that neither the mother nor the (imaginary) sister nor the local authority possesses by virtue of their status any power to detain T. Nor, however, does T have the capacity to choose one of them as an appropriate carer. If the role of carer is contested, it is the court alone which has the power – and in my judgment the duty – to make that choice in T’s best interests. From the choice will follow the exercise of care; and from the exercise of care, if absolutely necessary, some restraint may follow.

The legal power to bring this about by declaration was confirmed by the decision of the House of Lords in In re F (mental patient: sterilisation) [1990] 2 AC 1 that the common law of necessity would in appropriate cases permit otherwise tortious interferences with the personal integrity of the mentally incapacitated. In the Court of Appeal Lord Donaldson MR had said:

“ …the common law is 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. This process of using the common law to fill gaps is one of the most important duties of the judges.”

I do not accept Mr Gordon’s submission that necessity is limited to medical and similar emergencies. Lord Goff in R v Bournewood Mental Health Trust, ex parte L [1999] AC 458, 490, having cited early cases on the permissibility of detention of those who were a danger to themselves or to others, said:

“The concept of necessity has its role to play in all branches of our law of obligations – in contract …, in tort …  in restitution … and in our criminal law. It is therefore a concept of great importance.”

Lord Nolan said of the applicant (at 491):

“It would have been wholly irresponsible for those monitoring him to let him leave the hospital until he had been judged fit to do so.”

I would accordingly not think it right to set prior limits to the applicability of the doctrine.

But it is equally a part of Mr Gordon’s case that Parliament has made its own safety net provisions for the mentally disordered or incapacitated. He points to s. 47 of the National Assistance Act 1948 which permits local authorities to remove to suitable premises people who – in broad terms – are sick or are infirm and living in squalor, and who are in want of care and attention; and to s. 135 of the Mental Health Act 1983 which permits the removal of mentally disordered persons pending, among other things, the making of arrangements for their care – but only if they are being ill-treated or neglected or are living alone and unable to care for themselves, and then only for 72 hours. Both are cast in terms which exclude T.

If this case had come before the courts in the mid-1980s, Mr Gordon’s case, however troubling in terms of outcome, might well have been unanswerable. The court would have had to confront the fact that it was being asked to sanction state intervention in a situation which Parliament had recently removed from the state’s sphere of influence. But, as the Scottish jurist Stair wrote more than three centuries ago:

“[T]he nations are more happy whose laws have been entered by long custom, wrung out from their debates on particular cases, until it came to the consistence of fixed and known custom. For thereby the conveniences and inconveniences thereof through a long tract of time are experimentally seen…. But in statutes the lawgiver must at once balance the conveniences and inconveniences; wherein he may and often doth fall short ..."”(Stair, Institutes, I.1.15, quo. Bennion, Statutory Interpretation (3rd ed.) s. 319)

Since the conflict and settlement of the seventeenth century the courts have recognised the ultimate legislative authority of Parliament, and Parliament in its turn has respected the authority of the courts within their self-delineated sphere as the authors of the common law and the source of equity. The relationship between the two is a working relationship between two constitutional sovereignties (see R v Parliamentary Commissioner for Standards, ex parte Fayed [1998] 1 WLR  669, 670H,           per Lord Woolf MR).  Thus Parliament, on the one hand, has more than once had to legislate to rescue the courts from difficulties of their own making, while the courts for their part, from the refusal of Holt CJ (Smith v Gould (1706) 2 Salk. 666) to recognise slavery in England to the recent decision by the House of Lords on withdrawal of life support (Airedale NHS Trust v Bland [1993] AC 789), have from time to time had to speak where Parliament, although the more appropriate forum, was silent. Both can find themselves left behind by time and tide, and that is what has happened here.

Johnson J in his judgment in the present case recalled the reasons for the 1982 reforms. The 1981 white paper Cmnd. 8405 had said:

“The guardian, who is usually but not always a local social services authority, is given the powers that a father has over a child of 14. These powers are therefore very wide, as well as somewhat ill-defined, and out of keeping, in their paternalistic approach, with modern attitudes to the care of the mentally disordered.”

This thinking, which was certainly not without foundation, has been intensively revisited in the light of experience in the years since 1983. The Law Commission’s 1995 report (no. 231) on mental incapacity remarked that the reforms since 1959 had overlooked what it called “the benign side of guardianship”. Statute law had come, it suggested, to reflect “a single-minded view of personal guardianship as a method of restricting civil liberties rather than as a method of enhancing them”. Ministers, following public consultation, have now published a green paper (Cm 4465) which proposes legislation to give effect to the Law Commission’s proposal that a court should be given powers which include deciding where a person who lacks capacity is to live and what contact he or she should have with particular individuals. Without embarking on an analysis of the modern relationship between government and Parliament, it is plain as a matter of practical fact that the legislative will which produced the very elements of 1983 Act with which we are concerned is no longer there.

This does not constitute a blank cheque for the courts. The Act is still unquestionably the law. But the movement of events around the Act does in my judgment give a different character to the legislative space which is Mr Gordon’s only defence. What was once an eloquent silence has with the passage of time and events acquired the character of an uncovenanted gap in provision for the incapacitated.

It does not of course follow that the courts are free to devise new forms of social control unsanctioned by Parliament. Apart from the constitutional inhibitions on any such development (Mr Gordon reminds us of R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 513 and A-G v De Keyser’s Royal Hotel  [1920] AC 508, both of which, however, concern the supplanting of statutory by prerogative powers), Article 5 of the European Convention on Human Rights will in the very near future form a legal constraint on what a court, as a public authority, may do. It is worth observing that the Article’s guarantee of security of person, even taking it to be concerned only with arbitrary detention, is potentially engaged in the present case by both parties’ proposals, the mother’s and the local authority’s, inexorably making the resolution of the problem in part a Convention issue. 

By paragraph (c) of Article 5 a specific exception is made to permit the state to restrict the personal freedom of the persons of unsound mind – a class which, within limits, it is for each member state to define (Winterwerp v Netherlands (1979-80) 2 EHRR 387). The power is itself, however, subject to at least two major constraints: it must be in accordance with a procedure prescribed by law, and any such law must in turn accord the respect due under Article 8 to private and family life.

The first of these elements does not mean that the common law cannot grow or shape itself to changing social conditions and perceptions: see  SW and CR v UK  (1996) 21 EHRR 363. It means that any such change must be principled and predictable. For the reasons set out in the two preceding judgments I consider that the development of the law which our decision represents passes both limbs of this test.

The second element will be, in the light of this judgment, a matter to which the court that is to hear the substantive application for a declaration must have careful regard. But it should be clearly said now that it is T’s welfare which will remain throughout the single issue. The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare. As the European Court of Human Rights said in Marckx v Belgium (1979) 2 EHRR 330, Article 8(1) “does not merely compel the state to abstain from … interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life”. In the present state of the law as it affects T, it is upon the court and the local authority that any such positive obligation comes to rest. One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called Bournewood gap in the protection of those without capacity (see Lord Steyn at [1999] AC 458, 497).

These, in essence, are the reasons why I agree that the preliminary point is to be answered in the sense contended for by the local authority and the Official Solicitor. Far from inhibiting T’s liberty, such an answer helps to assure it.

Order: Appeal dismissed with costs.  Costs against Legal Services Commission under Section 11.  Legal Aid assessment of appellant’s costs.  No order asto costs official services save for Legal Aid assessment of Guardians costs.  Leave to appeal to House of Lords refused.
(Order does not form part of the approved judgment)