Since coming into force in 2007, the Mental Capacity Act 2005 has encouraged nurses to promote the autonomy of vulnerable adults in their care by promoting an assumption of capacity, supporting decision-making and accepting the right of a capable adult to make unwise decisions (Heart of England NHS Foundation Trust v JB [2014]).
The Court of Protection (the specialist court that settles disputes over mental capacity and the best interests of those who lack capacity) generally reinforces the principles of the 2005 Act by allowing vulnerable but capable persons to refuse medical treatment even where the consequence of the decision is that the person will die (King's College NHSFT v C [2015]).
There is, however, a limit to how far the Courts are prepared to allow people to neglect themselves. On such occasions, the need to protect a vulnerable but capable adult is so essential that the High Court will intervene using its inherent jurisdiction (F v West Berkshire HA [1990]).
Inherent Jurisdiction of the High Court
Under English common law, a superior court, the High Court rather than the Court of Protection, has the jurisdiction to hear any matter that comes before it, unless a statute limits that authority. The High Court's inherent jurisdiction once included decisions about the medical treatment of mentally incapable adults, but the provisions of the Mental Capacity Act 2005 have now replaced it.
The 2005 Act did not replace the inherent jurisdiction of the High Court altogether, and it is still available in cases of vulnerable adults, who possess capacity, but still require protection (DL v A Local Authority [2012]). In Re SA (Vulnerable Adult with Capacity: Marriage) [2005], the High Court considered a vulnerable adult for the purpose of the inherent jurisdiction as someone who:
‘Whether or not mentally incapacitated, and whether or not suffering from any mental illness, or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind, or dumb, or who is substantially handicapped by illness, injury or congenital deformity.’
The Court emphasised that this was an indicative and descriptive view and not a definitive definition. The case concerned an 18-year-old woman who was deaf and unable to speak. She communicated using British sign language, and communication within her family was limited as her parents spoke only Punjabi. She functioned at the intellectual level of a 13 or 14 year old, with a reading age of eight. Expert evidence was that the woman had capacity to marry and have an understanding of the concept of marriage, including a sexual relationship. However, she would have difficulty understanding a specific arranged marriage contract to a specific individual involving a change in her country of residence, and she did not want to live in Pakistan.
The High Court held that the use of the inherent jurisdiction was not confined to cases where a vulnerable adult was disabled by mental incapacity from making their own decisions or where an adult was unable to communicate their decision. The inherent jurisdiction could be exercised in relation to a vulnerable adult who, even with capacity, was:
The Court held that the woman was a vulnerable adult. Due to her disabilities, she may well be unable to take care of herself and protect herself against significant harm or exploitation if placed in unfamiliar surroundings. The court was satisfied that the woman needed protection by the court in relation to the marriage.
Rather than viewing the use of the inherent jurisdiction as a paternalistic measure, the Court considered it to be autonomy-enhancing, as it enabled a vulnerable young woman to exercise her right to self-determination, specifically her right to marry. Using the inherent jurisdiction did not deprive the woman of her right to make decisions but ensured the best possible chance of future happiness for the woman. The Court took the action to protect, support and enhance the woman's capacity to control her own life and destiny in the way she would wish (Re SA (Vulnerable Adult with capacity: Marriage) [2005](Munby J)).
Limits to the use of the High Court's inherent jurisdiction
In DL v A Local Authority [2012], the Court of Appeal held that, where it was necessary, lawful and proportionate, the High Court could exercise its inherent jurisdiction in relation to adults alongside the Mental Capacity Act 2005.
The terms of the 2005 Act must be looked to first to see what Parliament considered the appropriate statutory code, as the exercise of the inherent jurisdiction could not be deployed so as to undermine the will of Parliament. The inherent jurisdiction is, therefore, only available for use in cases that fall outside the Mental Capacity Act 2005 or other statutory provision.
In Northamptonshire Healthcare NHS Foundation Trust v ML [2014], the Court had to consider the most appropriate framework for authorising the deprivation of liberty of a 25-year-old man with severe learning disabilities while he underwent a long period of rehabilitation in a mental health unit. The Trust wanted the authorisation under the Mental Capacity Act 2005 or the inherent jurisdiction, as they feared that his parents would apply for his discharge if he were detained under the Mental Health Act 1983. The Court held that the man was ineligible to be subject to a deprivation of liberty safeguard under the Mental Capacity Act 2005, schedule 1A, and the Court could not make use of the inherent jurisdiction, as the man's case met the requirements for detention under statute, namely the Mental Health Act 1983.
Engaging the inherent jurisdiction
Where the use of the inherent jurisdiction relates to a vulnerable but capable adult subject to exploitation, coercion or harm, the High Court will initially consider whether their intervention is necessary and proportionate. As the person has capacity, the High Court will initially seek to use inherent jurisdiction to facilitate unencumbered decision-making, rather than taking decisions for the adult, by adopting a facilitative, rather than dictatorial approach (DL v A Local Authority [2012]).
Where the court's intervention requires more than a safe space in which to make a decision free from any alleged source of undue influence, it can use the inherent jurisdiction to impose long-term injunctive relief to protect the vulnerable adult. In A NHS Trust v A [2013], the High Court used the inherent jurisdiction to authorise the treatment of a vulnerable patient and authorise that person's deprivation of liberty in hospital. The use of the inherent jurisdiction to authorise a deprivation of liberty must comply with article 5 of the European Convention on Human Rights (Council of Europe, 1950).
Recent use of the inherent jurisdiction in health and social care
Two recent occasions of the use of the inherent jurisdiction by the High Court have proven to be controversial, with some considering the Courts intervention as paternalistic. In Mazhar v Lord Chancellor [2017], a without-notice order was made on the application of an NHS foundation trust. It related to a man suffering from muscular dystrophy and requiring 24-hour care. He had a tracheostomy and was ventilated but was found to have mental capacity in all material respects. He lived with his mother and sister, who had been given training in caring for him. Carers working on behalf of the NHS trust supplemented this care. When the NHS trust was unable to provide carers over the weekend, it made an urgent without-notice application to the High Court for authority to remove him from his home and transfer him to hospital for treatment.
The Judge made the order sought under the inherent jurisdiction of the High Court, authorising the use of reasonable and proportionate force by police and medical professionals to enter the man's home and take him by ambulance to hospital against his wishes and authorised his deprivation of his liberty while there.
In A Local Authority v BF [2018], the Court of Appeal held that the High Court had been right to extend an order under the inherent jurisdiction requiring a 97-year-old man with a range of health problems, including blindness in both eyes, diabetes and osteoarthritis, to reside in a care home even though the man had capacity to make decisions about his residence and wanted to return home.
The Court of Appeal held that the man was a vulnerable adult (old, blind, infirm, in a squalid and dangerous home, with undue influence present in his relationship with his son) who needed protection despite not lacking capacity. His vulnerability was such that he could not be returned home without careful planning, which was a crucial component of the protection afforded by the inherent jurisdiction.
Conclusion
Despite the promotion of autonomous decision-making, even where others consider the decision to be unwise, by the Mental Capacity Act 2005, the High Court is prepared to intervene in cases involving capable adults who are considered vulnerable using the inherent jurisdiction. These individuals fall outside the protective framework of the 2005 Act because they have capacity but are still considered in need of protection because of the risk of exploitation, coercion or harm.
The scope of the inherent jurisdiction is very broad and allows the High Court to settle any matter concerning a vulnerable adult, including care and treatment, as long as the intervention is necessary, proportionate and does not go against the will of Parliament.
Nurses need to be familiar with the availability and scope of the High Court's inherent jurisdiction as part of their legal awareness and safeguarding role when caring for vulnerable adults.