Court of Protection rules on the use of the inherent jurisdiction

Case report: RK, Re (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37 (18 August 2023)

Rachel Turner, who was instructed by the Official Solicitor, acted for R in these proceedings which concerned:

1. R’s capacity to make decisions about contact with others;

2. R’s capacity to revoke LPAs created in respect of property and affairs and health and welfare; and

3. whether R was susceptible to undue influence.

Proceedings were brought in 2021 by R’s family regarding R’s capacity to make decisions in relation to a number of areas including contact with others after R had significantly reduced her contact with her family. During proceedings, the parties resolved some of the capacity issues which were before the Court including R’s capacity to make decisions about her finances and R’s capacity to engage in sexual relations. The parties were encouraged to engage in mediation to try to resolve the outstanding issues, and to encourage R to reconnect with her family. Unfortunately, mediation had not been successful and a final hearing was required to resolve the issues before the Court.

In this final hearing, R’s family sought declarations that R lacked capacity to make decisions about contact with others. If R was found to have capacity, then they sought an order under “the inherent jurisdiction” to implement a supportive framework in order to encourage R to re-engage with her family, on the basis that they considered that she had been unduly influenced not to see her family.

At the hearing Mr Justice Cobb heard evidence from R’s family, social worker, the managing director of R’s supported living placement, and an expert psychologist. Mr Justice Cobb concluded that it was clear from Munby J’s judgment in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) that the inherent jurisdiction would generally be used when people are “under constraint, subject to coercion or undue influence or otherwise (for some other reason) deprived of the capacity to make a relevant decision, or disabled from making a free choice.” Mr Justice Cobb did not consider that this was R’s experience at her supported living placement. Therefore, Mr Justice Cobb did not consider that it was necessary for him to make orders under the inherent jurisdiction in relation to a supportive framework because he considered that R is able to make decisions freely herself. Mr Justice Cobb was careful to “guard against adopting an overly paternalistic attitude to a vulnerable adult”, and to make orders which might “undermine the very concepts of the MCA 2005 itself”, which aim to promote rather than to restrict a person’s autonomy. Although he decided he could not use the inherent jurisdiction to order that a framework be enforced, Mr Justice Cobb encouraged the parties to ensure that support be put in place for R to reconnect with her family and provided some views about what a supportive framework might look like.

The judgment is useful in demonstrating that where the Mental Capacity Act 2005 does not apply because a person has capacity, the inherent jurisdiction should not be then used as an alternative framework to put in place restrictive measures that might go against a person’s wishes.

In order to involve R in the proceedings, Mr Justice Cobb included a statement of key messages for R as an Appendix to his judgment which set out his decision, addressed directly to R. Mr Justice Cobb offered to meet with R to inform her of the outcome of the proceedings, and offered either to visit her at her placement, or for her to visit him at the Royal Courts of Justice where she would be able to see the courtroom where the hearing took place.

In the judgment, Mr Justice Cobb also extended particular thanks to Rachel:

“I hope that the other lawyers will understand if I extend particular thanks to Ms Turner from Miles & Partners for the conscientious and sensitive way in which she has represented the interests of R throughout the last two years on behalf of the Official Solicitor. Her attendance notes of her meetings with R have been extremely useful in me forming a clearer understanding of R, her wishes, and her needs.”

For more information on Court of Protection or mental health matters, please contact Rachel Turner.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.