Uncertainty about capacity for contact – and the inappropriateness of using the inherent jurisdiction

By Josie Seydel, 2nd February 2023

On Monday 23rd January 2023 I attended a court hearing (via MS Teams) before Mrs Justice Lieven (Case number 13825449). The hearing lasted almost exactly one hour.

In introducing the hearing, Mrs Justice Lieven made a particular point of emphasising the importance of the Transparency Order (of which I have yet to receive a copy) protecting P’s anonymity and prohibiting the recording of the hearing. 

The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of learning disability in the moderate range and an autistic spectrum condition”.  She had also been recently diagnosed as having an emotionally unstable personality disorder (EUPD) while in hospital last year.

P has been assessed by a clinical psychologist, Dr K.  His section 49 report has been followed by disagreements between the parties as to how his evidence should be interpreted, and further questions asked of him had apparently led to “some inconsistencies in answers”.  The view of the Integrated Health Board (ICB) was that it would be necessary for Dr K to give evidence in court in order to resolve these matters.

The parties agree that P lacks capacity to conduct legal proceedings, and to make a tenancy agreement.  They also agree that she has capacity to make decisions about her residence.  There is disagreement or uncertainty about her capacity in relation to safety in the community (specifically around traffic when she is in a state of heightened anxiety), and some or all of the care and support she receives (especially in the community).

The area of capacity that seemed of particular concern was contact with others.  Although Dr K was reported to be of the clear opinion that P does have capacity to make decisions about contact with others, this finding seemed not to accord with how her family and carers see her. It became clear during the course of this hearing that P is “over-familiar” with people.  The social worker described how “she will tell you males she’s just met are already her boyfriend. Recently she approached someone randomly in the pub and got their telephone number and staff were saying, ‘you’ve only just met him – is it really safe’ and they were successful and she’s deleted the man’s number.  But she puts herself in precarious situations. I’m surprised no harm has come to her.”[1]  

This seemed to raise a question as to whether P was (capacitously) making unwise decisions, or whether she lacks capacity in relation to contact in the community. 

The case was before a Tier 3 judge because the local authority had made an application to apply under the ‘inherent jurisdiction’.  During the hearing, this application to the inherent jurisdiction was withdrawn.

The hearing

As this is only the second CoP hearing I have attended, despite the helpful introduction by Judge Lieven, I was still a little baffled and grappling with a number of new acronyms, concepts and a lot of names. I am hoping that with time, this will become less cumbersome and therefore be less of a distraction from being able to report in greater accuracy and detail.

Counsel for the local authority (LA) began by providing a brief biography of P (who wasn’t in court), including a brief history of her care and his current concerns regarding her care and safeguarding. The LA, along with the ICB (who had their own separate representation) are providing the care for P under section 117 of the Mental Health Act,  following P’s discharge from hospital in November 2022 (where she was assessed and diagnosed as having EUPD). The care support involves 24-hour 2-to-1 carers for P, in what was described as a residential care setting, where P had agreed to reside following her discharge from hospital.

The LA are trying to establish how to safeguard P when she becomes dysregulated in public settings and around traffic, which both cause her heightened anxiety; they are also seeking clarification on how to manage her levels of care and carer support; as well as how to restrain her from inappropriate contact with strangers, when verbal dissuasion is ineffective. 

An assessment of P, made in March 2022 by Dr K (who was not present at this hearing), came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – but this was contested as being an inconsistent finding both within the assessment and (possibly) as evidenced by P’s inappropriate and risky behaviour in the community. It was explained by the LA representative, that “P will engage in conversations which may lead her to risky situations with unknown members of the public” and that she had a “history of sexualised comments with unknown males”. Verbal dissuasion and reasoning with P, if ineffective, the LA argued, would necessitate a degree of restraint. The LA explained this restraint as ‘placing a hand on an arm or leading her away’; if that was insufficient, then ‘low level physical intervention’; and then calling the police if P became aggressive. 

 The LA was making an application under the “inherent jurisdiction” (IJ) because they wanted the judge to authorise this course of action in challenging situations where P’s behaviour was deemed to be putting her at risk, even if P has capacity to make her own decisions about who she has contact with.  

When I watched this hearing, I had no idea what was meant by “the inherent jurisdiction”, but Munby’s description gives a good summary:

“[T]he inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.” (Thisdescription given originally by Munby J in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam) at paragraph 77, then endorsed in Re DL).

This means, that P could legally be restrained by her carers and have her freedoms restricted when deprivation of liberty (in P’s best interests, under the Mental Capacity Act 2005) is not applicable. 

In essence, my understanding is that, in this instance and similar cases, the IJ would function as a sort of legal loophole for authorising restrictions on someone who has capacity in the area on which restrictions are imposed – essentially overriding their wishes. 

In advance of this hearing, counsel for P (via her litigation friend the Official Solicitor) had raised concerns about invoking the inherent jurisdiction.  These concerns related to ‘the Wakefield case’, and ‘Re DL which I looked up afterwards.  In the first of these cases, Cobb J concluded that “the inherent jurisdiction should not be used to deprive a capacitous person of their liberty” and described it as “a potentially arbitrary mechanism for authorising a deprivation of liberty”.   In Re DL, MacFarlane J upheld use of the inherent jurisdiction for vulnerable adults who fall outside the protection of the MCA but whose capacity is overborne by non-MCA circumstances, e.g. coercion and undue influence. Rather than undermining autonomy, the inherent jurisdiction is to be considered part of a ‘great safety net’ that “is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity[4] . In this hearing Judge Lieven said she was “bound by DL not the Cobb case” (because it is from the more senior Court of Appeal).

The Official Solicitor was “concerned that the court’s exercise of the inherent jurisdiction may be being sought to circumvent the assessment that [P] has capacity to contact others” and that in reality it may be that the local authority just disagrees with the conclusion as to P’s capacity to make this decision.  

Counsel for the Local Authority withdrew the application for the case to be heard under the inherent jurisdiction.

That left the need to decide whether or not P has capacity to make her own decisions on contact in the community.  Should a (new) expert be instructed to assess this?

Mrs Justice Lieven remarked that “a vast amount of lawyers and legal expenses” were being used on “a relatively small amount of issues, with very fine distinctions” and that further assessment “does not feel to me, like a proportionate way forward, in a cash-strapped system” where in the case of P “there are already 8 lawyers and 3 detailed assessments”, pertinently adding “What benefit is there to P in all of this?”

I strongly feel that her Ladyship’s comments here point to the loss of focus on the individual at the centre of the case that may arise when legal professionals become engaged in the minutiae of the law and academic arguments.  The consequence is that P, the person at the centre of the case, and her feelings and wishes, become at risk of being overlooked, as does the immediacy of her vulnerability and care needs. This judge repositioned P and her needs, as the focus of the hearing.

The Judge asked P’s social worker for an account of P’s history and current day-to-day life. She said P has a history of episodes of unpredictable behaviour towards staff and property. She repearted that P is experiencing heightened levels of anxiety around traffic, and in the community; being ‘overfamiliar’ with strangers; engaging in inappropriate and risky contact, often of a sexual nature, with unknown males; and, on occasion, running away from carers. These behaviours are a cause of safeguarding concerns for her welfare and for the welfare of staff (if she becomes hostile). Since a move to supportive housing last year, P’s behaviour and dysregulation, whilst not without incident, seem to have become more stable. The social worker also clarified that P is living in supported living accommodation and not residential care (where DoLS would apply).

In regards to P’s 24-hour, 2-to-1 care, Judge Lieven wanted to understand what P’s feelings were about the this, to ascertain if less restrictive measures could be found. P’s Social Worker said: “Staff try to give her space when she asks not to have 2-to-1 care as she has felt overwhelmed by staff. We want the least restrictive option”. In response, counsel for the LA again maintained that P lacks capacity to decide on appropriate care and again they seemed to contest Dr K’s assessment (that P does have capacity), particularly in the light of P’s recent diagnosis of EUPD, and they again sought permission for further assessments. It was hoped that maybe on further assessment of P,  and reflection from another expert, that all parties may come to some agreement –  they acknowledged that (as the judge pointed out) this could not, of course be guaranteed.

Judge Lieven was clear that “There isn’t going to be a simple answer” that “getting more and more assessments isn’t going to help anyone” and that the diagnosis of EUPD was “a diagnosis of outcome, not cause”, a brilliantly succinct summary of this highly contentious psychiatric disorder. (For further discussion regarding personality disorders and the Mental Capacity Act 2005, see “What does the Court of Protection need to know about borderline personality disorder?”)

I believe the Judge’s decision prevented P’s needs from becoming lost in discussion of on-going differential diagnoses and technical details, which could (further) marginalise P, rather than add anything of real value to her life and well-being, and could only serve to unnecessarily prolong the case. 

Counsel for P’s mother spoke of P having previously resided with her mother, and although P often stated that she wanted to live with her mother again (although this fluctuated), that care at home was not feasible. This was in a large part down to issues of safeguarding where P had a history of “going missing”, “putting herself in precarious situations” and on one occasion fleeing from her carers “in a taxi and has later claimed she was raped”. P’s mother, said her counsel,  was clear that she wanted P to be safe and felt that P did not have capacity to make decisions to keep herself safe. The mother was concerned about the carers’ minimal powers of restriction and that P was purchasing alcohol against advice and wanted the LA to record P’s alcohol use in the care and capacity plan. She also raised concerns about P staying in third party’s homes overnight and having recently self-harmed. She requested an updating statement from the LA.

It was clear that some fine details about P’s safety and care were missing, and that a fuller picture of P’s day-to-day fluctuations in capacity needed attention. I would argue that this would be more beneficial to the needs of P and to her capacity to consent (which could be adversely affected by alcohol and emotional dysregulation) and that a behavioural analysis from P’s carers and family members or representatives would be far more useful than diagnostic assessments from otherwise unknown ‘experts’.

 Mrs Justice Lieven concluded the hearing by saying she “does NOT advise further assessments”.  Instead she called for a half-day hearing with Dr K in order to try to establish greater clarity about P’s fluctuating capacity and loss of capacity when she becomes emotionally dysregulated. She suggested that Dr K may wish to meet with P again before the next hearing, which was set for early February.  No interim order was given but 2-to-1 care and supervision in the home and community was to continue. In her final comments the Judge again remarked that “this is just not a case that is open to a simple answer”.

I appreciated the opportunity to observe this hearing, I found the judge to be decisive, clear and focused on P rather than on technicalities. She concentrated attention on P as an individual and away from endless, and arguably not productive, assessments which were unlikely to resolve the differences of opinion regarding Ps capacity. 

In addition, I believe that dropping the use of the inherent jurisdiction discouraged actions which could have resulted in more controlling and restrictive measures being implemented. P already has 24 hour, 2-to-1 supervision and was stated as finding this ‘overwhelming’ at times. Further analysis, perhaps with the assistance of Dr K, will hopefully ensure that any actions are both necessary and proportionate, not arbitrary or capricious, and are sensitive to P’s capacity at the time insofar as that is practicable.

Fluctuations in capacity, like in this case, may mean that a consensus of P’s capacity can never be definitively achieved. This hearing highlighted to me the importance of the Mental Capacity Act’s Code of Practice:  that capacity should be presumed and that ‘a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken’ may: a) have partial capacity; b) be temporarily incapacitated (e.g., P’s use of alcohol) c) be permanently incapacitated d) may be capable of making decisions with support. 

I hope that the next hearing will allow remote access or be held online again as I would very much like to hear what Dr K has to add, as I have not heard an expert present in a hearing. I will be interested to see whether any this leads to any clarity or, even if not a ‘simple answer’, perhaps a resolution.

Josie Seydel is a Chartered Counselling Psychologist, Dialectical Behavioural Therapist and Mindfulness Teacher with a background in a diverse range of settings including: primary care services, eating disorders services, women’s prison services, adolescent in-patient services and private practice in London’s financial district. She tweets @JosieSeydel76

[1] I have written this report to the best of my ability with respect to the confidentiality of P.  My quotations cannot be guaranteed to be 100% accurate since we are not allowed to record hearings, but I’ve endeavoured to present as true and accurate an account as possible. Any opinions stated are wholly my own, unless otherwise indicated.

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