High Court’s inherent jurisdiction invoked to prevent an elderly vulnerable man from living with his dysfunctional son


Southend-on-Sea Borough Council v Mr Meyers [2019] EWHC 399 (Fam): Mr Justice Hayden deploys the inherent jurisdiction to overrule the capacitous wish of an elderly man to return home to live with his abusive son.

Background

This case concerned a blind 97-year-old man who suffered from diabetes and osteoarthritis. He lived in squalid conditions in a bungalow which he shared with his son KF who suffered from drug and alcohol addiction.

Several attempts had been made by the local authority to put in place a care package at home for Mr M but on each occasion the package had to be abandoned after care agencies withdrew support due to the aggressive and intimidating behaviour of KF towards care staff. KF had also caused extensive damage to Mr M’s bungalow.

The local authority commenced proceedings in March 2017 arising from its concern that the conduct of KF was preventing Mr M from receiving the care services he needed. Injunctions were put in place restraining KF from intimidating carers and obstructing repairs to the bungalow. The local authority eventually obtained Mr M’s cooperation to move into a care home while a full renovation of the property was undertaken. Mr M and KF returned to live in the bungalow in July 2017. The local authority struggled to secure carers for Mr M due primarily to KF’s continuing aggressive and intimidating behaviour but also due to of Mr M’s lack of cooperation with implementation of the care package. The bungalow again deteriorated into a state of squalor and disrepair.  By April 2018 the condition of the bungalow was such that it was described as a ‘death trap’. Mr M refused all offers of support, respite care and residential placements.

Mr M was assessed as having capacity to make decisions about where to reside and with whom. In June 2018 the local authority obtained declarations from the court that they had discharged their statutory responsibilities towards Mr M.

By September 2018 Mr M’s health and the conditions in the bungalow had deteriorated further. A visiting social worker found Mr M living in appalling conditions – the bungalow had no furniture, the glass in the patio doors had been removed, there was no cooker, the boiler had been dismantled, there was no heating or hot water and household utensils had been burnt in the garden. KF was responsible for the damage. Mr M’s bed had no mattress or bedding – he was sleeping on the wooden slats of the bed frame. Mr M was found naked from the waist down surrounded by flies. He had a septic bed sore. On the floor under the bed was food, clutter, faeces and blood. He was dehydrated and had a urinary tract infection which was causing hallucinations. Mr M, although deeply resistant, was persuaded to return to the care home. There was little doubt at this point that Mr M lacked capacity to make decisions about his welfare due to the temporary disabling effects of dehydration and UTI. The court made an order requiring Mr M to live at the care home pending further order. The evidence of the social worker was that if Mr M went home ‘he could or will die.’

By December 2018 Mr M was assessed as having capacity to make decisions about his living arrangements and the matter came back before the court. Mr M was clear in his wish to return home to live with KF. He understood that if he returned home the local authority would not be able to secure care for him and neither could they arrange repairs to the property while KF continued to reside there. The bungalow remained in a dangerous uninhabitable state.

The case was listed before Mr Justice Hayden on 10th December 2018, in the urgent matters list, following an application by the local authority under the inherent jurisdiction to lift the injunctions in place which prevented Mr M from returning home. Evidence was heard from Mr M. He asserted his right as a capacitious adult to assert his freedom of choice to return home while fully appreciating the risk to his welfare and indeed his life this entailed. He explained that he had promised his late wife that he would look after KF and he wished to honour that commitment. Although Hayden J accepted that Mr M had capacity to make decisions about his residence, he was unwilling to make a final decision without hearing full arguments. Instead, pursuant to the inherent jurisdiction, he extended the injunctions preventing Mr M’s return home pending a full hearing. The local authority sought permission to appeal but was unsuccessful.

The case came back before Hayden J for a full hearing on 4th February 2019.

The Inherent Jurisdiction

As Mr M had been assessed as having capacity to make decisions about his living arrangements, the court had no jurisdiction under the Mental Capacity Act 2005 (MCA) to intervene to make best interests decisions on his behalf. However, the issue under consideration in this case was whether the High Court’s inherent jurisdiction for the protection of vulnerable adults could be invoked to protect Mr M.

The ambit of the inherent jurisdiction is not clearly defined in law. In practice it is used as a safety net for the protection of vulnerable people otherwise not protected by either the Mental Capacity Act or the Mental Health legislation. It also provides additional protection for adults who lack capacity within the meaning of the MCA where the remedy sought does not fall within those provided by the MCA.

The definition of ‘vulnerability’ in the context of the inherent jurisdiction was outlined by Munby J in the case of Re SA [2005] EWHC 2942 although Munby J made clear that the above was not intended to be an exhaustive definition: –

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.

Munby J elaborated further in relation to category (iii):-

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.

In the case of Mr M, Hayden J made clear that it was not his blindness which brought him within the scope of the inherent jurisdiction, instead he found that the essence of his vulnerability was his dysfunctional relationship KF.  He went on to say:-

I do not doubt that there is a strong paternal love, alongside a real dependency on KF as the only family Mr Meyers’s perceives to be left to him. I have not seen any evidence of KF forcing his father, either physically or verbally to act against his will but I am clear that the intensity of this relationship precludes Mr Meyers’s ability to take rational and informed decisions.

Hayden J described KF’s influence on his father as insidious, pervasive and malign. KF triggered Mr M’s sense of duty, guilt, love and responsibility the effect of which was to disable Mr M from making truly informed decisions. He added: –

I instinctively recoil from intervening in the decision-making of capacitous adults. However well motivated the State may be in seeking, paternalistically, to protect people from their own unwise decisions, it is a dangerous course which has the potential to threaten fundamental rights and freedoms […] the inherent jurisdiction is not ubiquitous and should be utilised sparingly. Here Mr Meyers’ life requires to be protected and I consider that, ultimately, the State has an obligation to do so. Additionally, it is important to recognise that the treatment of Mr Meyers’ has not merely been neglectful but abusive and corrosive of his dignity. To the extent that the Court’s decision will encroach as on Mr Meyers’ personal autonomy it is, I believe, a justified and proportionate intervention. The preservation of human life will always weigh heavily when evaluating issues of this kind.

Hayden J was therefore satisfied that, despite Mr M undoubtedly having capacity to make unwise decisions, he was a vulnerable adult who required the protection of the Court.

The Decision

Hayden J refused the declaration sought by the local authority that it had discharged its responsibilities to Mr M. Instead he held that orders should be made under the inherent jurisdiction to fulfil the objective that Mr M should be prevented from living with his son, either at the bungalow or elsewhere: –

I do not compel him to reside in any other place or otherwise limit with whom he should live. For the avoidance of any doubt, Mr Meyers may live in his own bungalow, with an appropriate package of supportive care, conditional upon his son’s exclusion from the property […] In this way I restrict Mr Meyers’ autonomy only to the degree that is necessary to protect him, a measure which I have concluded is a proportionate interference with his Article 8 rights.

The local authority was directed to investigate whether KF could be removed from the bungalow to enable Mr M to return home. Hayden J directed that every effort should be made by the local authority to promote a healthier relationship between Mr M and KF and to promote reunification with his other children.

As to whether the terms of the proposed order would amount to a deprivation of Mr M’s liberty, Hayden J was satisfied it would not. He stated that the impact of the court’s intervention was to restrict Mr M’s accommodation options, not his liberty. The objective of the order was, he said, not to confine Mr M to the care home but to protect him from the grave danger of living in the bungalow with his son. There remained, he said, a range accommodation options open to Mr M.

Comment

This case serves as a stark reminder to public bodies with safeguarding responsibilities that reliance on the right of a capacitous person to make unwise decisions will not automatically discharge their statutory duties under the Care Act 2014 and the Human Rights Act 1998. The case also serves to demonstrate the wide and largely unfettered power of the High Court to grant injunctive relief under its inherent jurisdiction for the protection of those vulnerable adults who fall outside the scope of the Mental Capacity Act.  It highlights the challenge faced by the court when trying to strike a balance between protection of a vulnerable capacitous adult and respect for that adult’s autonomy to make unwise decisions.

Although, the restrictions imposed by the court on Mr M’s contact with KF clearly amounted to a significant interference with his Article 8 right to private and family life – the court considered that such interference was necessary and proportionate when balanced against the risk to Mr M of returning to live with KF.

The judge’s assertion that the proposed restrictions on Mr M returning home to live with his son did not amount to a deprivation of liberty is controversial. Although Hayden J was adamant that he was restricting Mr M’s choices rather than his liberty, the effect of those restrictions was that Mr M was prevented from living where and with whom he chose. Mr M had been consistent throughout the proceedings in his wish to return to live at home -whatever the risks to his wellbeing. Were attempts to remove KF from the bungalow to prove unsuccessful (as had been the case in the past), and were the care home the only alternative option (as in reality it was), Mr M would undoubtedly be prevented from leaving the care home and  this would amount to a deprivation of liberty.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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