A judge was recently asked to resolve a case where there was disagreement as to the jurisdictional basis upon which the Court of Protection was being invited to impose care on a man against his will as being in his best interests. The Court of Protection team at 39 Essex Chambers analyse the ruling.
In London Borough of Croydon v CD  EWHC 2943 (Fam) (Cobb J) the local authority brought a case before the court seeking orders to enable them to provide care to CD for his own protection. CD was not present at the hearing and nor was he represented, but the Official Solicitor accepted the invitation to act as Advocate to the Court.
Cobb J set out the dire situation in which CD was in, finding unsurprisingly that it was quite proper for the matter to be brought before the court:
CD is diabetic and also epileptic and has poor mobility, incontinent of urine and faeces and unable to maintain his home environment. CD's condition is further complicated by excess alcohol use and he is mostly inebriated at home. This has led to frequent incidents of falling in his flat, non-concordant with medication, severe self neglect, inability to manage his personal care, activities of daily living, his health and wellbeing. Recently his home environment deteriorated to a stage that a care agency commissioned via Croydon Council were unable to access the flat to support him with his care needs for fear of cross contamination and infection. Due to this lack of support occasioned by his poor and unhealthy home environment, CD frequently called the London Ambulance and Police… he attended the Accident and Emergency [department] of the Princess Royal Hospital in Bromley and Croydon University Hospital in Croydon regularly. CD lives alone and he has limited positive support network, he socialises with friends in the same block of flats who equally have alcohol misuse problems.
CD is unable to safely complete most activities of daily living without help and support from his carer. Due to his restricted mobility he is unable to manage his living environment and his personal care or complete most activities of daily living. His flat has been 'blitz cleaned' on many occasions and support care package commissioned but this has failed on all occasions. All professionals working with CD are of the view that community care has failed and te housing department is not able to meet his needs.
By the time the matter came before the Court CD’s flat was soiled with human waste, putting him and anyone who accesses his flat at high risk of infectious diseases. He was continuing to drink alcohol and soil himself. His entire house from the hallway, lounge, bedroom and kitchen, including all his furniture, had faecal and urinal stains making it odorous and uninhabitable to live and preventing carers from going to his flat to provide the personal care CD required.
Cobb J found that CD was disinclined to change his ways and was not willing to be moved to a safe environment where he could be supported with his personal care.
The applicant local authority commended a 20-point care plan to the court which allowed its staff to gain access to CD’s accommodation in order, first of all to provide appropriate care for CD himself and secondly to make his accommodation safe for human habitation.
The Official Solicitor, acting as Advocate to the Court, accepted that this plan appropriately met the needs of the case.
There was disagreement however as to the jurisdictional basis upon which the Court was being invited to impose care on CD against his will as being in his best interests. The local authority sought orders pursuant to the court’s inherent jurisdiction, while the Official Solicitor submitted that the court should take the safer jurisdictional route of the MCA by making the orders pursuant to s.48 MCA 2005.
Cobb J held that CD was both a vulnerable adult within the meaning of Re: SA  EWHC 2942 and therefore amenable to the inherent jurisdiction, and also someone whom there was reason to believe lacked capacity to make decisions about this care. Cobb J therefore made the order pursuant to the MCA 2005 (on the basis that where there is a statutory route it is more appropriate to use it it), while recording in the order the finding that CD was a vulnerable individual so the inherent jurisdiction route was an alternative available to the local authority on the particular facts of this case.
Cobb J sounded a note of caution in relation to the question of deprivation of liberty. Whilst he identified that Munby J had, in Re PS  EWHC 623 held that the court had the power under the inherent jurisdiction to direct that an adult could be placed at a specified place and deprive them of their liberty there, he noted that: “[t]his was, importantly qualified by what he goes onto say at  namely that (i) the detention must be authorised by the court on application made by the local authority and before the detention commences and (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 prime facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate.” Cobb J noted that he was not being asked to consider the question of deprivation of liberty on the facts of the case before him, but alerted the local authority and the Official Solicitor to his provisional view on the subject.
It is entirely understandable that the local authority brought this case to the court, and entirely understandable why Cobb J granted the relief that he did. We suggest that Cobb J was well-advised to proceed down the route of s.48 MCA 2005, because to use the inherent jurisdiction in this situation would appear to us to have been problematic. There was no suggestion that CD’s will was being overborne by another, such that the inherent jurisdiction could be used to secure his autonomy by removing that other person’s influence – i.e. the approach that the Court of Appeal commended in Re DL as “facilitative, rather than dictatorial, approach of the court [aimed at] the re-establishment of the individual's autonomy of decision making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.” Although we do not have the precise order that Cobb J made, its effect is clear, as it would enable the local authority lawfully to effect entry to CD’s house even in the face of his refusal. If that refusal is capacitous within the meaning of the MCA 2005, then it would be difficult to see why (in the words of Lieven J in JK, handed down subsequently to CD, and discussed elsewhere in this report) this would not be a situation in which the inherent jurisdiction would be being used to reverse the outcome under the statutory scheme of that Act. Further, what would be the consequence if CD refused entry – would he be in contempt of court for frustrating the effect of the order? Cobb J had previously in Re PR sounded a note of caution in relation to the use of injunctive relief against a vulnerable adult; we suggest that this note would equally sound in relation to CD’s position under the inherent jurisdiction.
Finally, we note that Cobb J again reiterated his view that the inherent jurisdiction can only be used to deprive a person of their liberty if they both are ‘of unsound mind’ of a nature and degree warranting confinement and lack the relevant decision-making capacity. Baker LJ in Re BF had expressed the view (in refusing permission before the Court of Appeal, so therefore, strictly, not in a decision with precedent value) that the inherent jurisdiction could be used to deprive a person with capacity of their liberty so long as they satisfied the criteria of ‘unsoundness of mind,’ at least on an interim basis whilst investigations are being undertaken. Baker LJ was undoubtedly correct that, for purposes of Article 5(1)(e) ECHR, deprivation of liberty does not require proof of incapacity (as otherwise the MHA 1983 would be incompatible with the ECHR). But insofar as recourse is being had to the inherent jurisdiction as an extra-statutory detention mechanism, we would respectfully suggest that its use should be as limited as possible, and that it would be intensely problematic were it to be routinely used in relation to those with unimpaired decisionmaking capacity.
This article was written by the Court of Protection team at 39 Essex Chambers.