Inherent Jurisdiction

Context and definition

Prior to the enactment of the Mental Capacity Act 2005 the courts used ‘inherent jurisdiction’ to enable them to intervene legally in relation to vulnerable adults, even when no legislation sanction was in place. The Mental Capacity Act now allows us to identify those unable to make decisions for themselves in specific areas, at specific times and use the principles laid out by the Act to ensure their best interests are addressed.

However, there is a gap between those who may come under the recognition of one who lacks capacity, and a person who has capacity regarding decisions in their own lives, but may not be fully in control of the ability to make these decisions due to such things as constraint, coercion, undue influence and other vitiating factors.

What is inherent jurisdiction

Inherent jurisdiction is an automatic, non statutory power that the Court can exercise on behalf of the Crown. The crown as ‘parens patriae’ or father of the nation, has a special duty to protect its subjects, particularly those who cannot protect themselves.

Where has this been applied- Case Law

Munby J in Re: SA [2005] EWHC 2942 [2006] 1FLR 867 ( Vulnerable adult with capacity: Marriage) Judge Munby used  IH to prevent influence from a family arranging a marriage for an 18 year old daughter who has sensory neural loss.

Bodey J in Mrs A and Mr A [2010] EWHC 1549

Judge Bodey applied inherent jurisdiction as a holding mechanism to create a situation where the vulnerable person with capacity could receive help and support free of coercion and decide freely what he/she wanted to do.

DL v local authority and others [2012] EWCA Civ 253.

DL, a man in his 50’s was controlling and behaving aggressively, physically and verbally, towards his elderly parents. Both parents had capacity. The Courts made Interim injunctions restraining DL from assaulting, threatening or coercing Mr and Mrs L. An order was also made for the official solicitor to investigate Mr and Mrs L’s true wishes with regards to the behaviour of their son and their future.

Inherent Jurisdiction

A Local Authority will, when it becomes aware of a situation in which it may believe that a citizen is being pressured into accepting circumstances that may be detrimental to their wellbeing, work with the citizen and partner agencies to support them to explore all options available to them. This will include liaising with health and the police to ensure all involved are fully aware of circumstances and will ensure the appropriate action may be taken.

Does the person have Mental Capacity?

Yes - Then:

Do you reasonably believe the person may be subject to constraint, coercion, undue influence or for some other reason, be deprived of the capacity to make relevant decision by free choice?

No Then:

Complete two stage Mental Capacity Act Test and if necessary Best Interest process

Is an local authority safeguarding procedure appropriate?

A balance needs to be identified between safeguarding against harm and not overruling the wishes of those who do have capacity to make decisions. Part of this decision making may be that the person does not wish to go through a safeguarding process. Practitioners need to be clear that people are making decisions free from undue influence and coercion, and if this is not apparent it should be facilitated wherever possible. An individual with capacity may choose to take risks, however providers or commissioners could be exposed to litigation if they place people, or people remain, in a position of risk.

Have individuals been given every opportunity to ensure they are aware of the choices and options available to them?

These may be: -

  • Being supported to make a complaint to the Police
  • The option, with support, to move away from their present situation.