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Elderly woman didn’t give ‘true consent’ to care home move

An elderly woman bullied by her son into moving into a care home had not given valid consent to the decision, the Court of Appeal has ruled.

28 March 2012

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The judgment is the first by an appellate court since the entry into force of the Mental Capacity Act considering whether an adult who did not lack capacity could nonetheless be the victim of psychological abuse.

Ruling in DL v a local authority [2012] EWCA Civ 253, the appeal judges said that the Act had not taken away the High Court’s inherent jurisdiction to intervene to protect vulnerable adults.

Even though the Act had put in place a statutory mechanism to protect adults lacking capacity, the court could step in for the protection of vulnerable adults whose capacity had been impaired by coercion or undue influence.

As he dismissed the appeal, Lord Justice McFarlane said it would have been open to parliament to include specific provision, “either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005”.

However, he continued: “In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson [in the 2001 Re F case]”.

The case was brought by the local authority against ML’s son DL, who lived with her, following concerns that he was over-controlling of his mother’s life.

His behaviour was reported to include threats, telling her where in the house she could move and preventing her from going out, and trying to force her to move into a care home.

Despite ML’s request not to bring the case, the local authority applied for an injunction restraining DL from interfering with his mother’s decisions.

Counsel for the local authority Paul Bowen argued the appeal was based on the “false premise” that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and ignore their fundamental right to autonomy.

He said the case was limited to individuals falling outside the Mental Capacity Act but who nevertheless have not given or cannot give a ‘true consent’ to a particular aspect of their lives “not as a result of mental incapacity but for some other reason, such as the undue influence of a third party”.

Referring to pre-legislative work identifying to the risk of elder abuse, McFarlane LJ said there was “sound and strong public policy justification” to maintain the court’s inherent jurisdiction in cases not contemplated by the Act.

However, he said, the protection available under the inherent jurisdiction should not be limited to the elderly but extend to all vulnerable adults.

Defining the protected group was not easy, he concluded, saying that it should be left to the common law whose ability to “develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily”.

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