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Inherent jurisdiction to authorise deprivation of liberty of adult with capacity

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In the recently reported case of A Local Authority v BF [2018] EWCA Civ 2962, the court ruled that in an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing their human rights.

The 97-year-old man, referred to as “P” throughout proceedings, suffers from health problems including blindness, osteoarthritis and diabetes. For many years, he lived in a bungalow with his son, referred to as “KJ”. KJ suffers from his own long-term problems with addiction.

The local authority became concerned in 2017 due to KJ’s “aggressive and obstructive behaviour” which was preventing P from receiving the necessary care services. In addition, the bungalow was in a poor condition. It had no running water, little furniture, electrical wiring visible and rubble on the floor. P was admitted to hospital several times, which eventually led to him seeking respite at a care home.

In the care home, a capacity assessment was completed by a consultant physiatrist who concluded that P has capacity to decide on his living arrangements pursuant to the Mental Capacity Act 2005. It was P’s expressed wish to return home to continue living with his son.

The court made an interim order in December 2018 which required P to reside at a care home, over Christmas, and not at his own home with his son, despite P having capacity to make decisions about his residence and wishing to return home.

The order was expressed to last until a further hearing took place when the Judge could hear full argument on what relief could be granted pursuant to the inherent jurisdiction.

The local authority appealed, and submitted at paragraph 26 that orders preventing P returning home and requiring him to remain at the care home would infringe Article 5 of the ECHR and “the inherent jurisdiction cannot be used to override his capacitous decision to return home”.

The appeal was dismissed for the following reasons.

Lord Justice Baker firstly concluded at paragraph 31 that P “is a vulnerable adult. His age, blindness and other infirmities, combined with his traumatic experiences living in squalid and dangerous conditions at home, render him particularly vulnerable.” “He is, without question, a person who falls in the category of vulnerable adults for whom this expanded role of the inherent jurisdiction is intended.”

Secondly, Lord Justice Baker concluded at paragraph 33 that “although the expert evidence is that he has capacity to make decisions concerning his care and residence, there is certainly prima facie evidence that he is of unsound mind by reason of his infirmity.”

Finally, Lord Justice Baker concluded at paragraph 34, with reference to Winterwerp v Netherlands [1979] ECHR 4, that “in an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5.” Also, P “could not conceivably be returned home without very careful planning and a programme of support, buttressed, as may be necessary, by court orders.”

Lord Justice Baker concluded that P’s detention is entirely consistent with his overall human rights.

By  Megan Taylor, graduate paralegal in the Court of Protection and community care department.