Those with an interest in the reach and extent of safeguarding responsibilities may already be following the saga of Mr Douglas Meyers, the blind 97 year old WW2 royal navy gunner taken from his home into respite care in a state of neglect, and his legal fight to be allowed home. As Mr Meyers reportedly put it, this is about the freedom of choice that he had fought in the second world war to preserve.
A recent judgment published on 20 February 2019 - Southend-on-Sea Borough Council v Mr Myers - marks the next chapter of this fascinating case about the inherent jurisdiction of the High Court, which may cast significant doubt on where the already-blurry lines can be drawn between protecting the vulnerable and respecting their autonomy.
What is the inherent jurisdiction?
For anyone unfamiliar with the ‘inherent jurisdiction’, this refers to the powers of relatively senior judges to protect vulnerable people at their discretion, and sits at the fringes of the Mental Capacity Act, to protect those who fall outside it.
There is little by way of formal guidance on how and when the inherent jurisdiction can be exercised, but traditionally it has been used to plug ‘gaps’ between the MCA and Mental Health Act, and to protect those who, while having capacity, are nonetheless vulnerable and unable to make decisions free of constraint, usually as a result of coercion or undue influence.
What is the case about?
Mr Meyers had lived for 40 years in a two-bedroom bungalow, latterly with his son, who faced what are described as “great difficulties… arising from long-term problems with alcohol and drugs addiction"
Longstanding issues around the habitability of the house and aggressive and obstructive behaviour of the son led to a breakdown in care provision, and Mr Meyers’ situation deteriorated. He was eventually visited by a social worker, and he was rather graphically described as being “surrounded by flies, blood, food, faeces and clutter”. He was persuaded to attend a respite care home and subsequently assessed as lacking capacity to make decisions about his residence. The social worker confirmed to the court in a statement that if Mr Meyers went home “he could or will die”, and the court made an order requiring him to live at the care home.
After a further period of months, Mr Meyers was assessed by a consultant psychiatrist to have capacity to decide where to live and, shortly before Christmas 2018, the local authority applied to court for a reconsideration of the refusal to allow him to return home. The first instance judge refused, and extended the restrictions to prevent Mr Meyers from residing at the bungalow which had been his home for many years, from residing with his son at any other address, and requiring him to reside at a care home to be agreed between himself and the local authority.
The Court of Appeal
The local authority, supported by Mr Meyers’ own representatives, appealed on the grounds that the extended order deprived Mr Meyers of his liberty, infringing on his Article 5 human rights to liberty and security. They argued that he was not “of unsound mind”, and that the inherent jurisdiction could not therefore be used to override his capacitous decision to return home.
The Court of Appeal sided with the first instance judge. It decided that Mr Meyers was a ‘vulnerable adult’, there was at least ‘prima facie’ evidence of undue influence and that Mr Meyers was of unsound mind as a result of infirmity and/or extraneous circumstances, and the judge was entitled to maintain time-limited restrictions pending further evidence and argument. The Court of Appeal confirmed that, in an emergency situation, a person may be deprived of their liberty in the absence of evidence of mental disorder, without infringing Article 5.
The recent judgment
On 4 February 2019, there was a further hearing before the first instance judge, when he refused to grant a declaration that the local authority had discharged its responsibilities, and further maintained the restrictions on Mr Meyers.
The judge, who had spoken to Mr Meyers by telephone in preliminary hearings, described him as “engaging” and “entirely lucid”, and noted his wish to return to his bungalow. He noted Mr Meyers as being entirely capable, with capacity for determining where he wishes to reside and with whom, and not of unsound mind. However, he decided that Mr Meyers was vulnerable, and that the essence of his vulnerability was his entirely dysfunctional relationship with his son.
The evidence of the social worker that he was not under coercive influence or any influence vitiating his ability to make capacitous decisions was rejected, with the judge stating that the intensity of his relationship with his son “occludes Mr Meyers' ability to take rational and informed decisions”.
What then of Article 5? The judge concluded that his decision did not amount to a deprivation of liberty, but rather a restriction on liberty of movement, the distinction between the two being a matter of ‘degree’ or ‘intensity’ rather than ‘nature’ or ‘substance’. To safeguard Mr Meyers, says the judge, it is necessary to restrict the scope and ambit of his choices, but that is not a deprivation of his physical liberty; there remain a range of options open to Mr Meyers, and the court’s intervention merely limits his accommodation options and restricts contact with his son.
Practical impact - Our comments
Interestingly, at least some of the coverage has reported the matter as a judge backing Mr Meyers’ fight to die at home. It seems those commentators may not have fully appreciated that the judge’s order appears to be the only thing preventing precisely that from happening.
The acid test for a deprivation of liberty was of course defined by the Supreme Court in Cheshire West as a state of being “subject to continuous supervision and control and not free to leave”. ‘Free to leave’ has generally been understood to include the freedom for a person to move permanently in order to live where and with whom he chooses. If this judgment is correct, that understanding may need refinement, because this case suggests a person’s choice of whether to go home can be restricted without depriving them of their liberty.
The consequences of that are potentially far-reaching:
- Firstly, if that is correct, does the court need to be involved at all to prevent a person from going home, or can a restriction that is necessary and proportionate be put in place without court review because Article 5 is not engaged?
- Secondly, health and social care practitioners will need to try and identify where the line is between a restriction of choice (where autonomy can be overridden in the name of paternalistic protection) and a deprivation of liberty (where the safeguards of human rights law apply). In our view, that is not easy.
- We also note that this seems to expand the ambit of the inherent jurisdiction to override personal autonomy in the name of protection, even where patients have capacity and are of sound mind. Individuals with capacity may wonder when respect will be given to the right to make unwise decisions. The position for public bodies with safeguarding responsibilities becomes equally troublesome. If the court can intervene regardless, when can a safeguarding authority ever rely on a decision to respect a person’s unwise decision, rather than applying to court?
For now, we can only be sure that this judgment raises a lot more questions than it answers Watch this space.
How we can help
Our national team of Healthcare Regulatory lawyers have extensive experience of advising providers and commissioners on all aspects of safeguarding vulnerable adults and mental capacity issues, including those potentially involving the High Court’s inherent jurisdiction.
We can also help with:
- All aspects of the Mental Capacity Act and Court of Protection proceedings;
- Welfare applications relating to care and/or accommodation;
- Section 21A challenges to DoLS authorisations;
- Advice regarding the interface between the Mental Capacity Act and Mental Health Act;
- Bespoke training on all aspects of the law as it relates to safeguarding and mental capacity.
