England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SUNDERLAND DISTRICT REGISTRY

		The Law Courts Quayside Newcastle Upon Tyne NE1 3LA
		9th March 2007

Mr Justice Munby :

1. These are proceedings under the inherent jurisdiction. They relate to PS, an elderly lady who was born in 1925. The evidence currently available to the court indicates that she lacks capacity. She also suffers from physical ill-health.

The facts

2. PS was admitted to hospital on 22 January 2007. She was ready for discharge by 7 February 2007 but at that point a crisis emerged. Her daughter, CA, informed the hospital that she was intending to discharge her mother into her own care rather than into the care of the T unit, a residential care and elderly mentally infirm unit where PS had lived since 28 July 2006 and which had been identified as suitable for meeting PS's permanent needs at a meeting, convened by the local authority and attended by CA, on 7 November 2006. Concerns were increased by CA's request to the hospital that they not inform the local authority of what she was planning.
3. On 9 February 2007 (it was a Friday) the local authority made an urgent ex parte out-of-hours telephone application to Bodey J. He made an interim order to protect PS over the weekend, providing for PS to be placed in the T unit until a hearing before me the following Tuesday, 13 February 2007.
4. The matter came before me on 13 February 2007 and again on 1 March 2007. I made, and subsequently continued, interim declarations that PS lacks the capacity (i) to litigate, (ii) to decide where she should reside, (iii) to decide whom she has contact with, (iv) to decide on issues concerning her care and (v) to manage her financial affairs. The reason why there were no fewer than five declarations in relation to capacity is, of course, because questions of capacity are always issue specific: Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, and Re E (An Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] 1 FLR 965. Someone may have capacity for one purpose but lack capacity for another purpose. In the present case the medical evidence indicates that PS lacks capacity in all five respects.
5. On 13 February 2007 I made, and on 1 March 2007 I extended, an order declaring on an interim basis, inter alia, that it was lawful, as being in her best interests, that PS resides at the T unit. I made various other orders and directions which there is no need for me to detail.

The issues

6. I give this judgment to explain two particular parts of the orders I made. Both raise important questions as to the precise ambit and reach of the inherent jurisdiction.
7. The first point arises in this way. The local authority had understandable concerns that CA might attempt to remove PS from the T unit. In the circumstances I was persuaded that it was appropriate to grant an injunction, backed by a penal notice, restraining CA from doing anything to obstruct or prevent PS from remaining at the T unit. But the local authority was understandably concerned that the injunction would not of itself enable the local authority to prevent PS's removal if CA were to take the law into her own hands and seek to remove her mother from the T unit, albeit in defiance of the injunction. Equally, the local authority was concerned that if it took steps itself to prevent PS leaving or being removed from the T unit without the protection of an appropriate order of the court it might be unlawfully 'depriving PS of her liberty' in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and thereby exposing itself to a possible claim for compensation under Article 5(5): see HL v United Kingdom (2004) 40 EHRR 761 and Re DE, JE v DE and anor [2006] EWHC 3459 (Fam).
8. In these circumstances the local authority sought an order permitting it to use appropriate means to stop CA removing PS. This raised two questions: first, does the court have jurisdiction to make such an order, and, secondly, if it has, when and how should the jurisdiction be exercised?
9. The second point arises in this way. PS is in receipt of both the State retirement pension and a small private pension which are paid into her bank account. She also has some modest savings in a building society account. CA has practical control of these funds – she is, for example, empowered to sign cheques on her mother's behalf. The local authority and the Official Solicitor, who acts as PS's litigation friend, are concerned that these funds may be at risk of dissipation and that they are in any event not being appropriately applied in meeting PS's requirements. They are anxious that they should therefore be brought under proper control. But whereas there would be a mechanism under regulation 33 of the Social Security (Claims and Payments) Regulations 1987, SI 1987/1968, to ensure the proper application of PS's State pension by means of a statutory appointment of some appropriate person to receive and deal with it, that would not be available to deal with PS's other income or her savings.
10. The local authority sought the appointment of a receiver. This raised two questions: first, does the court have jurisdiction to make such an order, and, secondly, if it has, should the jurisdiction be exercised when it would be open to the local authority to make an application to the Court of Protection for the appointment of a receiver under Part VII of the Mental Health Act 1983 (still in force though prospectively repealed by the Mental Capacity Act 2005)?

The inherent jurisdiction

11. Before addressing these two particular points it may be helpful to make a few observations about the inherent jurisdiction of the court with respect to incapacitated or vulnerable adults.
12. I do not take up time re-tracing the history and development of the inherent declaratory jurisdiction with respect to adults since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. It suffices to refer to the account in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [38]-[43]. I merely repeat what I said in that case at para [37]:

"It is now clear … that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court."

I added at para [45]:

"the court can regulate everything that conduces to the incompetent adult's welfare and happiness."

13. Consistently with this view of the jurisdiction (and as demonstrated by Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, and St Helens Borough Council v PE [2006] EWHC 3460 (Fam)) there is no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult's welfare and interests, just as there is also no doubt that the court has a wide and largely unfettered jurisdiction to grant appropriate injunctive relief. More generally, as I went on to observe in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [96]-[97]:

"It is elementary that the court exercises its powers by reference to the incompetent adult's best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case."

14. There is no doubt that since its rediscovery by the House of Lords the inherent jurisdiction has evolved, that it continues to evolve and that it must indeed continue to evolve if the court is properly to comply with its obligations under, for example, Articles 5 and 8 of the Convention: see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [52]. As Dame Elizabeth Butler-Sloss P said in Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC 2746 (Fam), [2004] 1 FLR 541, at para [96], in an important passage to which Mr O'Brien appropriately drew attention:

"It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so."

Singer J made precisely the same point when he said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8], that the jurisdiction is "sufficiently flexible … to evolve in accordance with social needs and social values."

15. I said much the same thing in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [45], where I expressed the view that:

"New problems will generate new demands and produce new remedies"

adding at para [84] that:

"Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults."

Is there power to detain?

16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there: see Norfolk and Norwich Healthcare (NHS) Trust v W [1996] 2 FLR 613 (adult), A Metropolitan Borough Council v DB [1997] 1 FLR 767 (child), Re MB (Medical Treatment) [1997] 2 FLR 426 at page 439 (adult) and Re C (Detention: Medical Treatment) [1997] 2 FLR 180 (child).
17. So the jurisdiction is clear. How should it be exercised? This must, inevitably, depend upon the precise circumstances of the particular case. As the Court of Appeal said in Re MB (Medical Treatment) [1997] 2 FLR 426 at page 439, "The extent of force or compulsion which may become necessary can only be judged in each individual case." But there are, as HL v United Kingdom (2004) 40 EHRR 761 so painfully demonstrated, further and more fundamental constraints on the exercise of the jurisdiction.
18. Detention in the sense in which it is here being used will inevitably involve a "deprivation of liberty" as that expression is used in Article 5. Since the court is a public authority for this purpose (see section 6(3)(a) of the Human Rights Act 1998), any exercise of its inherent jurisdiction must (see sections 6(1) and 6(6) of the Act) be compatible with the various requirements of Article 5.
19. Article 5(1) provides that:

"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: …"

The only relevant provision is in sub-paragraph (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 that:

"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."

Article 5(5) provides that:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

20. This is not the occasion, and there is no need for me, to explore the Strasbourg jurisprudence in detail. It is to be found, in particular, in Winterwerp v The Netherlands (1979) 2 EHRR 387 and in HL v United Kingdom (2004) 40 EHRR 761. For present purposes it suffices to note the following key principles:

i) Article 5(1) and Article 5(4) provide "distinctive and cumulative protections." Article 5(1) "strictly regulates the circumstances in which one's liberty can be taken away" whereas Article 5(4) "requires a review of its legality thereafter" (see HL at para [123]). So, in my judgment, the inherent jurisdiction must be exercised in a manner that complies with both Article 5(1) and Article 5(4).

ii) The requirement in Article 5(1) that the deprivation of liberty must be "in accordance with a procedure prescribed by law" carries with it important consequences (Winterwerp at paras [39], [45], HL at paras [98], [114]-[115]):

a) First, our domestic law must meet the standard of "lawfulness" set by the Convention, which requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail. Specifically, our domestic law must give effect to the principle that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.

b) Second, the detention must be in conformity with the essential objective of Article 5(1), which is to prevent individuals being deprived of their liberty in an arbitrary fashion. Accordingly our domestic law must provide adequate legal protections and "fair and proper procedures" before someone is detained.

iii) Article 5(4) provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court. In the case of someone deprived of his liberty on the ground of unsoundness of mind, there are two aspects to this (Winterwerp at para [55], HL at paras [135], [140]):

a) First, the lawfulness of the detention has to be reviewed not merely in the light of any domestic legal requirements but also in the light of the text of the Convention, the general principles embodied in the Convention and the aim of the restrictions permitted by Article 5(1)(e). Thus the review must be wide enough to bear on those conditions which are essential for the lawful detention of a person on the ground of unsoundness of mind, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.

b) Second. given the very nature of the deprivation of liberty under consideration in cases within Article 5(1)(e), there must be a review of the lawfulness of the detention "at reasonable intervals." Domestic law must provide "speedy" and "periodic control" at "reasonable intervals."

21. In HL v United Kingdom (2004) 40 EHRR 761 the Strasbourg court found our procedures in respect of patients falling into the so-called 'Bournewood gap' (see R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458) to be gravely deficient. The applicant was found to have been deprived of his liberty in circumstances involving breaches of both Article 5(1)(e) and Article 5(4). There was some debate as to the adequacy of the inherent jurisdiction. The Strasbourg court was not impressed with the inherent jurisdiction as it was understood to operate at the time of the applicant's confinement (see at paras [134] and [141]). The court concluded (at para [142]) that it had not been demonstrated that the applicant had available to him a procedure which satisfied the requirements of Article 5(4).
22. In my judgment, proper compliance with section 6 of the Human Rights Act 1998 requires the judges to mould and adapt the inherent jurisdiction so that it is compatible with the requirements of Article 5, as well as with Article 8 (as to which see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292). In particular, and not least in the light of section 2(1)(a) of the Act (which provides that I "must take into account" decisions of the Strasbourg court), the inherent jurisdiction must be moulded and adapted to meet the strictures of the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761. In saying this I am fortified by Sedley LJ's observation in Re F (Adult: Court's Jurisdiction) [2000] 2 FLR 512 at page 532 that:

"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."

23. The full implications of this are a matter for another day. Indeed, they can probably only be worked out on a case by case basis. For present purposes, and confining what follows to cases of the type with which I am here concerned, it seems to me that if the inherent jurisdiction is to be invoked to justify the detention of someone like PS in somewhere like the T unit, the following minimum requirements must be satisfied in order to comply with Article 5:

i) The detention must be authorised by the court on application made by the local authority and before the detention commences.

ii) Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement. In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate.

iii) Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.

24. Illuminating insights into how, in a case such as this, the inherent jurisdiction ought to be exercised are to be found in the decision of Wall J in Re C (Detention: Medical Treatment) [1997] 2 FLR 180. Wall J's judgment contains an important analysis of the permissible use of force in the case of children. Curiously, and unfortunately, its significance as an indication of how the inherent jurisdiction with respect to incapacitated or vulnerable adults should properly be exercised has, so far as I am aware, never been appreciated.
25. Responding to submissions on behalf of C, the child in question, by Mr Roderic Wood QC (as he then was), Wall J said at page 190:

"I take the force of these submissions, and entirely agree with Mr Wood that if it is appropriate to make an order under the inherent jurisdiction in this case, the order should be time-limited, and have built into it stringent safeguards to protect the interests of C. I am also of the view, however, that C's best safeguard is legal representation and access to the court through her lawyers. Clearly any order must contain liberty to apply on short notice."

26. At pages 197-198 Wall J identified a number of considerations which should be borne in mind by the court when deciding whether, and if so on what terms, to make an order under the parens patriae jurisdiction directing the detention of a child in a specified institution for the purposes of medical treatment. I need not set them all out. For present purposes I draw attention to four of them, numbers (3)-(6):

"(3) Any order the court makes must be based upon and justified by convincing evidence from appropriate experts that the treatment regime proposed

(a) accords with expert medical opinion, and

(b) is therapeutically necessary.

(4) Any order the court makes should direct or authorise the minimum degree of force or restraint, and in the case of an order directing or authorising the detention of the child the minimum period of detention, consistent with the welfare principle.

(5) Any order directing or authorising the detention of the child should

(a) specify the place where the child is to be detained,

(b) specify (i) the maximum period for which the detention is authorised and, if thought appropriate, (ii) a date on which the matter is to be reviewed by the court, and

(c) specify, so far as possible, a place whose location imposes the minimum impediments on easy and regular access between parents and child.

(6) Any order directing or authorising the detention of the child should contain an express liberty to any party (including the child) to apply to the court for further directions on the shortest reasonable notice."

None of this requires explanation or elaboration, save to observe that (3) and (4) (both, as it seems to me, of particular importance) reflect the need for the court to observe the Convention principles of necessity and proportionality.

27. In my judgment, exactly the same considerations apply, mutatis mutandis, when deciding whether to make similar or analogous orders under the inherent jurisdiction with respect to incapacitated or vulnerable adults.
28. In the present case the local authority initially sought an order declaring that:

"it is lawful, being in the best interests of PS, for the [local authority], by its servants or agents, who have had appropriate training in restraint techniques, to use reasonable and proportionate force (including the power of detention) where they deem it necessary to prevent [PS] from absconding from [the T unit] or otherwise escaping the control of her carers."

29. I was concerned, as was the Official Solicitor, whether this did not go too far, particularly in its possibly misleading reference to "restraint techniques," a phrase which might suggest the use of personal restraint techniques – such as 'pin down' – of a kind that have rightly caused concern in a number of custodial and other residential settings. PS does not require that kind of restraint. What is required – all that is required – is appropriate 'perimeter security,' designed to ensure that PS cannot leave by simply walking out of the premises, and appropriate monitoring of visits to ensure that she is not taken away by CA. (Compare the factual situation in Re DE, JE v DE and anor [2006] EWHC 3459 (Fam).) In an extreme situation it might be necessary to use reasonable force to prevent CA removing her, but I would envisage that as being force applied to CA rather than to PS.
30. In the upshot I made an order declaring that:

"it is lawful being in PS's best interests for the [local authority] by its employees or agents to use reasonable and proportionate measures to prevent PS from leaving [the T unit]."

That, as it seemed to me, was an order that it was necessary to make, in order to protect PS against any untoward behaviour by CA, but an order that went no further than was strictly necessary.

Is there power to appoint a receiver?

31. As Mr O'Brien points out, section 37 of the Supreme Court Act 1981 confers power on the court to appoint a receiver whenever it appears to the court to be just and convenient to do so. I can see no reason why in principle the court in the exercise of the inherent jurisdiction should not, in an appropriate case, appoint a receiver of an incapacitated or vulnerable adult's property if that is an appropriate way of protecting his interests and promoting his welfare. Welfare, after all, in this context is not confined to someone's physical or emotional welfare. It extends to embrace the material and financial: see the well-known passage in the judgment of Lindley LJ in In re McGrath (Infants) [1893] 1 Ch 143 at page 148.
32. Nor, so far as I am aware, has the existence of a parallel statutory regime ever been treated as fettering the parens patriae jurisdiction in relation to children save in those cases where the statute in question either ousts the jurisdiction altogether or specifically regulates or fetters the exercise of the jurisdiction. I can see absolutely no reason why the inherent jurisdiction in relation to incapacitated or vulnerable adults should be any different. And this is as it should be, for a refusal to exercise the inherent jurisdiction on the basis that an alternative remedy was available could lead to the child or adult in question falling between stools and not receiving the protection he needs: see the discussion in Re C (Detention: Medical Treatment) [1997] 2 FLR 180 at pages 190 and 198.
33. So, as a matter of principle, there would seem no reason why the mere existence of an available remedy under Part VII of the Mental Health Act 1983 should preclude the exercise of the inherent jurisdiction in an appropriate case. In fact, as Mr O'Brien points out, the matter does not rest merely on principle, for in Re F (Adult: Court's Jurisdiction) [2000] 2 FLR 512 the Court of Appeal held, as Dame Elizabeth Butler-Sloss P put it at page 522, that:

"The jurisdiction of the High Court to grant relief by way of declarations is not … excluded by the present statutory regime under the 1983 Act."

34. It is necessary in PS's interests for her income and savings to be put under proper control, but it would be an unnecessary burden and, in my judgment, wholly disproportionate to the very modest amounts involved, to condemn the parties to the trouble and expense of separate proceedings in the Court of Protection. In the circumstances it seemed to me that the appropriate course was for me to appoint an appropriate officer of the local authority to be PS's receiver. I accordingly made an order declaring (in the form of a bare declaration of best interests as explained in St Helens Borough Council v PE [2006] EWHC 3460 (Fam)) that:

"it is in PS's best interests that her financial affairs are managed by [DS], Director of Adult Services, Sunderland City Council (provided that the management of such financial affairs shall be limited to the collection and application of her income and the management of her bank and building society accounts)"

and ordering that:

"[DS] is hereby appointed to be receiver of the property money and income of PS until further order and is hereby authorised to take all such steps as may be necessary to preserve the same with power to pay and apply the income to or for the benefit of PS."

I also granted an injunction to restrain CA operating PS's bank or building society accounts.