The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for some months. The court had held that the patient lacked capacity in all relevant respects. An order would effectively require the detention of the patient.
Held: Munby J considered the use of the court’s inherent powers. 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. It was appropriate to prevent the patient leaving the unit and an order was made accordingly.
As to the power to appoint a receiver: ‘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.’ and it is ‘elementary that the court exercises its powers by reference to the incompetent adult’s best interests’. An order was made accordingly.
Munby J said: ‘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.’
Judges:
Munby J
Citations:
[2007] EWHC 623 (Fam), [2007] 2 FLR 1083
Links:
Statutes:
European Convention on Human Rights 5 8, Human Rights Act 1998 6, Supreme Court Act 1981 37
Jurisdiction:
England and Wales
Citing:
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A FD 27-Nov-2003
The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain . .
Cited – St Helens Borough Council v PE and Another FD 29-Dec-2006
The court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote a vulnerable adult’s welfare and interests. The inherent jurisdiction of the High Court encompasses situations in which the necessity . .
Cited – A Local Authority v MA and others; Re SA (Vulnerable Adult with Capacity: Marriage) FD 15-Dec-2005
Munby J discussed the court’s inherent powers to make orders to protect the welfare of a vulnerable adult: ‘It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests . . The particular form of order . .
Cited – M v B, A and S (by the Official Solicitor) 2005
. .
Cited – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – Norfolk and Norwich Healthcare (NHS) Trust v W 1996
The court’s inherent powers extend to authorising an adult with mental incapacity to be detained for his own protection in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there. . .
Cited – In Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) FD 2004
The court considered an application for a forced marriage protection order.
Held: Singer J said that the court’s inherent jurisdiction is ‘sufficiently flexible . . to evolve in accordance with social needs and social values.’ . .
Cited – A Metropolitan Borough Council v DB 1997
. .
Cited – In Re C (A Minor) (Medical Treatment: Court’s Jurisdiction); Re C (Detention: Medical Treatment) FD 21-Mar-1997
A children’s clinic is not secure accommodation, and the court may make orders for his or her treatment whilst in the clinic. The court discussed whether the state had power if necessary to detain a child using its parens patriae powers to give . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – In Re F (Adult: Court’s Jurisdiction) CA 25-Jul-2000
The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent . .
Cited – In re S (Adult patient) (Inherent jurisdiction: Family life); Sheffield City Council v S FD 2002
A court could only grant an order permitting treatment despite the absence of an adult patient’s consent by virtue of the doctrine of necessity.
Munby J said: ‘in our multi-cultural and pluralistic society the family takes many forms . . The . .
Cited – In re McGrath (Infants) CA 1893
. .
Cited by:
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CA 4-May-2010
E, now aged 19, suffered a genetic condition leading to severe learning disability, and a lack of mental capacity. After being in the care of F, but displaying potentially violent behaviours, he was removed against his and F’s will to the care of . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Updated: 20 April 2022; Ref: scu.251595