Mr Justice Cobb recently handed down two important decisions on the scope of the inherent jurisdiction at the border of the Mental Capacity Act 2005. In the first of two articles on these rulings, the Court of Protection team at 39 Essex Chambers examine a case concerning a young adult and the use of the inherent jurisdiction to authorise deprivations of liberty where there is no statutory framework in place
In Wakefield MDC and Wakefield CCG v DN and MN  EWHC 2306 (Fam) (Cobb J) DN was a 25 year old man described as having a severe form of autism, a general anxiety disorder and traits of emotionally unstable personality disorder. He was ‘not significantly intellectually impaired’ and was ‘capable of clear thinking’. He had previously been detained under s.3 MHA 1983 and received s.117 aftercare. He was vulnerable to exploitation, and liable to have ‘meltdowns’, during which he would lose the capacity to manage his behaviour and make considered decisions.
DN had been convicted of a range of public order offences, and sentenced to a community order with a 2 year mental health treatment requirement under s.207 of the Criminal Justice Act 2003, and had then committed further offences. As part of that order he was required to live at a supported living placement. Other elements of his care plan meant that the objective element of a deprivation of liberty was satisfied. The statutory bodies took the view that DN could not give free and meaningful consent to the confinement, and since the CJA does not contain any power to deprive a person of their liberty, sought an order authorising the deprivation of liberty from the High Court under the inherent jurisdiction. The MCA 2005 was not relied on because it was accepted that DN did not lack capacity – the position of the statutory bodies was that he was a vulnerable adult in the Re SA/Re DL sense. It appears that by the time of the hearing, the statutory bodies had accepted that the court could not authorise DN’s deprivation of liberty but still sought the court’s authorisation of the interference in his Article 8 rights caused by the arrangements for his care.
Cobb J held that DN was not a person of unsound mind nor a ‘vulnerable adult’. He was able to give genuine consent to the arrangements for his care, even though the choice he was faced with was stark – if he did not consent, the criminal court may say that he would have to serve his sentence in prison. Despite concluding that DN was not of unsound mind, the court accepted that at times when DN was having a ‘meltdown’ he would lack capacity under the MCA 2005 and his deprivation of liberty could be authorised in advance by the court, presumably on the basis that at these limited times he would be a person of unsound mind by reason of his temporary lack of capacity.
Cobb J took the view that the inherent jurisdiction was a potentially arbitrary mechanism for authorising a deprivation of liberty, and that there were ‘strong judicial dicta’ that it should primarily be used as a facilitative rather than a dictatorial jurisdiction. Differing from the judgment in Hertfordshire County Council v AB  EWHC 3103 (Fam), Cobb J concluded that the inherent jurisdiction should not be used to deprive a capacitous person of their liberty. The net result was that the restrictions in place for DN would have to be reduced as there was no lawful basis on which he could be deprived of his liberty.
There have been a number of decisions in recent times about young people and adults and the use of the inherent jurisdiction to authorise deprivations of liberty where there is no statutory framework in place. It is clear from this judgment that different judges have different views about the appropriateness of relying on the inherent jurisdiction in such circumstances, as a matter of principle, and different interpretations of the Court of Appeal’s decision in Re DL. It seems likely that at some stage, the appeal courts will have to decide whether the inherent jurisdiction does extend to the deprivation of liberty of a capacitous person, or a vulnerable adult, and if so, in what circumstances.
This article was written by the Court of Protection team at 39 Essex Chambers. The team's summary of the second Cobb J ruling will appear next week.