In LB Wandsworth v M & Ors  EWHC 2435 (Fam), Hayden J was faced with a significant problem in relation to a child about to turn 18. The solution that he adopted, unfortunately, both casts unhelpful doubt upon a central plank of the Court of Protection’s jurisdiction and highlights, again, just how unsatisfactory the current state of the inherent jurisdiction is in this context.
In order to understand the problem confronting Hayden J (and the problems his judgment arguably causes), it is necessary to set out the relevant facts in a little details.
The case has received a degree of media attention, as it concerned three boys who were said to have been brought up by their mother in a “narcissistic cult,” in extremely isolated conditions. For present purposes, the relevant boy was “J,” who was about to turn 18. He was, at the point of the judgment, in a residential unit, and had been living there for nearly two years apart from his mother, and with no contact with her. Having previously expressed a strong wish not to live at home, he was now expressing a wish to live with his mother and his older brother N (who was 21 and had only left the flat on one occasion in over 3 years), although he was refusing to see her or availing himself of the opportunity of the telephone contact which has been offered. It was clear that J’s assessment was of his own situation was “fraught with danger both immediately and in the longer term,” and that the apparent contradiction in J not wishing to see his mother but wishing to return to live with her was driven was explained (by the Senior Family Therapist) as she describes as “a form of suicidality” by which she explained she considers J “is giving up on the whole idea of having or developing any thing other than a very, very narrow and isolated life.” It appeared, further, that it was his elder brother, N, who was the real attraction for J’s return, as he “appear[ed] to have achieved precisely the refuge that J seeks.” J had also “volubly articulated a deep seated resistance to ‘the intervention of the state’.”
The professional consensus was that J was making modest but important advances in the residential unit. The Senior Family Therapist’s evidence as to the objectives to be achived were that “J needs to have a home environment separate from his brothers, as they have encouraged and supported his cut-off and unrealistic approach to life,” and that “[t]here should be a slow and gradual exposure to external reality, including social relationships and education, so that [J] very slowly becomes accustomed to this and able to manage. To what extent he will be able to make progress in this is currently unknown. There are one or two hopeful indicators… …but it is possible that his personality structure has become so rigid as to make him feel unable to adapt and learn to become an independent, autonomous adult with a meaningful relationship to the world.” It was considered that J’s continuing reluctance to involve himself in “external reality” and his persistent self-aggrandisement, gave rise to a serious risk of his developing severe personality difficulties such as “Narcissistic Personality Disorder.”
Given that J was about to turn 18, how could the goal of ensuring that he stayed at the residential unit be achieved? It appears from the judgment that it was only very late in the day that the local authority took the view that it might be possible to argue for this on the basis that J lacked the relevant decision-making, and put a mental capacity assessment before the court so as to get Court of Protection proceedings off the ground. The assessment concluded that due to J’s ‘lack of insight’ and ‘inflexibility of thought’, he ‘on the balance of probabilities lacked mental capacity to make the decision as to where he should live’. The social worker added to this in oral evidence that J was unable to ‘sift and weigh the issues’ underlying the decision. However, she did not illustrate her assertion by reference to identified difficulties.
Hayden J, however, was very concerned about this assessment.
“46. I do not mean to be discourteous to those involved in this assessment. I suspect that the process was almost entirely driven by a determination to secure that which is undoubtedly in J’s best interests i.e. continued placement at this residential unit. However, I am convinced that the assessment displays insufficient forensic rigour to justify its conclusion. Neither do I regard its determination that J lacks capacity as adequately reasoned.
47. Furthermore, having listened to the evidence from those who undertook the assessment I am far from satisfied that they explained the purpose of the assessment to J. Indeed I would go further, I do not think they did. One of the key principles of the Mental Capacity Act is that a person should not be treated as unable to make a decision until everything practicable has been done to help the person make their own decision (see s1 (3)). The code of Practice dedicates an entire chapter to providing guidance and prompt consideration of a range of practical steps which might assist in this objective. It seems to me to be fundamental to the assessment process that P is informed of the purpose of the assessment. Mr Cheung insinuated that he had done this but, if he will forgive me for saying so, I did not find him convincing. In the written assessment there appears, at (5), the following question: have you explained the purpose of the assessment to P? The answer, which I repeat in full, reads ‘Yes’. J is aware of the current situation and this topic has been brought up and discussed on many different occasions.’
49. It seems to me that a prerequisite to evaluation of a person’s capacity on any specific issue is at very least that they have explained to them the purpose and extent of the assessment itself. Here, that did not happen. In my view, it is probably fatal to any conclusion. In any event, it, at least, gravely undermines it. I have very much in mind PC and Anor v City of York Council  COPLR 409,  EWCA Civ 478 where Peter Jackson J (as he then was) made the following observation:
‘… there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.’
Although he was very concerned about the assessment, Hayden J noted that, at an earlier stage J’s solicitor had considered (during the course of assessing whether J was competent to instruct him) had also spent some time considering the question of where J should live. Although the observations were made in this specific context, J’s observations were interesting. “J said he wanted to return home, not to be with M or N but to the ‘home itself’. J amplified this, saying he sees being at home as ‘freedom – not in the sense of being allowed out as he does not wish to go out’. He said, ‘at home there is freedom not being homogenised by society’. He also observed that education was ‘indoctrination by the State to make people slaves’. He considered that being in the unit was ‘like being in a prison’. He expanded on this saying ‘not in the physical sense but the emotional’. He continued, that he was ‘forced to communicate in a way with people that was not beneficial to him’.” Hayden J was “left with a real anxiety as to whether these remarks illustrate a lack of capacity to take the decision in focus or merely an illogicality or general unreasonableness on J’s part.”
Hayden J then went on to consider whether the material before him passed the s.48 threshold. This threshold had – it was generally considered – been definitively considered by HHJ Marshall QC in Re F  EWHC B30 (Fam) thus “What is required, in my judgment, is simply sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard. There are various phrases which might be used to describe this, such as “good reason to believe” or “serious cause for concern” or “a real possibility” that P lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised.” HHJ Marshall QC had, further, stated the “proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P’s best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P’s affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P’s right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined.”
Hayden J, however, took the view that this set the bar too low:
“65. There can be no doubt that the cogency and quality of evidence required to justify a declaration of incapacity, pursuant to Section 15, will be greater than that required to establish the interim test. However, it is important to emphasise that the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility‘, even a ‘serious one‘ that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation‘ which might be thought to ‘suggest a serious possibility that P lacks capacity‘ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act. In exchanges with Counsel the test has been referred to as ‘a low one’ or ‘a much lower threshold test at the interim stage’. Additionally, when I look, for example, at the words of the Judge in Re FM [a decision of King LJ on permission to appeal] I am left with a real sense of unease, particularly as the facts in that case appear to have some similarity to those here.
66. Ultimately whilst I recognise that, for a variety of reasons, it will rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by Section 15, I think it is important to emphasise that Section 48 is a different test with a different and interim objective rather than a lesser one. ‘Reason to believe‘ that P lacks capacity must be predicated on solid and well reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.
Having “honed the test,” Hayden J declared himself:
“entirely satisfied that it is not met in J’s case. In summary: the purpose of the assessment was not explained to J; the analysis of the extent of J’s understanding of the relevant information is superficial and incomplete; the ultimate reasoning underpinning the conclusions of the assessment is vague and unsatisfactory. It would be entirely disrespectful to J to curtail any aspect of his autonomy on the basis of such unsatisfactory evidence. I am entirely unclear as to whether J has capacity to decide where he lives or not. Accordingly, even on an interim basis, the presumption of capacity has not been rebutted. These are important principles which must never be eclipsed by a paternalistic emphasis on welfare. To do so, lets in the dangers Lord Reid alluded to in S v McC: W v W (supra). Further, I would add, to conclude otherwise, on this evidence would serve only to reinforce J’s own heightened anxieties about the unmarshalled power of the State and thus potentially undermine the welfare objectives.”
However, the story did not end there, because Hayden went on to consider whether he could exercise the declaratory and injunctive powers of the High Court under its inherent jurisdiction, on the basis he could do so “if I am satisfied that J is a vulnerable adult, at risk of harm, whose autonomy has been compromised in relation to his decision making processes and who may be sufficiently protected by this relief.”
Having traced the concept of “vulnerable adult” through No Secrets, Re SA and Re DL, Hayden J held:
“82. It would be unconscionable and socially undesirable if, due to the weaknesses of an assessment which failed satisfactorily to resolve whether there are reasons to believe that J lacks capacity, he were to find himself beyond the reach of judicial protection. I am clear that he is not. The question that arises is how he can most effectively be protected with the least intrusive and most proportionate curtailment of his autonomy.
83. The starting point is that a thorough, MCA compliant assessment of capacity be undertaken immediately. […]
84. When the report is available, it will be necessary to revisit the question of capacity and therefore jurisdiction. I am entirely satisfied that the inherent jurisdiction of this Court permits J to be protected whilst these investigations resume. I have already set out the benefits of J remaining in the unit and have no doubt at all that to do so is in his best interest. Without revisiting these issues I would emphasise that the primary advantage that the unit offers to J is the opportunity of interacting with other people, precisely that for which he has no appetite and would wish to avoid.
85. Having established jurisdiction, a question then arises as to how to frame the injunctive relief. The wide scope of this relief was considered in detail in the Court of Appeal in Wookey v Wookey  1 Fam 126 and revisited in P v P  2 FLR 857. Whilst the relief available will invariably be bespoke, there are some identifiable characteristics to it which cast light on its application. Injunctive relief is a discretionary remedy, it acts in personam and it is derived from equitable principles. Furthermore, it may only be granted to those amenable to its jurisdiction and it must be capable of being put into effect. It follows logically from these general propositions that the injunction must serve a useful purpose and have a real possibility of being enforced in personam.
86. Central in considering the extent of the relief to be granted is the requirement to identify a balance between the protection of the individual and respect for his liberty. Thus, the order must reflect the tension between these two competing rights and obligations. The interference must be the minimum possible and proportionate to the identified objectives. It should also be for the shortest duration. It follows that the need for the restriction should be kept in regular review.”
In the circumstances, Hayden found that the right balance was struck thus:
“88. As J has emphasised, he is motivated to protect “freedom of mind”, always an illusive concept. He is not concerned with freedom of the body. There is no evidence that he feels his physical movements to be restricted in the unit in any way at all. The identified danger to his welfare development is a return to M’s home which, I repeat, has been identified by the experts as a ‘kind of suicide‘ for him. Accordingly, I do not consider the injunction should be drafted in terms which compel him to live in any particular place but I do want to restrain him from living at M’s home. This I believe to be the proportionate intervention having regard to the principles I have set out above. It is to endure only until I reconsider the question of capacity further and inevitably that of jurisdiction too when a detailed capacity assessment has been completed.”
On the basis of the material contained in the judgment, it appears absolutely clear that both the professionals involved and Hayden J were correct to wish to take steps to intervene to seek to secure J’s longer-term welfare and wellbeing. This is arguably a classic case where taking a very narrow view of autonomy and simply deferring to his stated wish to live at his mother’s home would be – ethically – entirely the wrong course of action. For more on the ethics of intervention in such situations, I would commend Camillia Kong’s Mental Capacity in Relationship (Cambridge 2017) – and I suspect this case will feature in the forthcoming practical guide that we are writing together to applying relational autonomy in practice.
If, ethically, the result being sought by Hayden J was entirely correct (and, again, it provides a useful way in which to test whether the outcome that might be dictated by the CRPD is one we wish to follow), legally the approach is much more problematic.
To start with, it is unfortunate (to put it mildly) that Hayden J did not have drawn to his attention that the Re F test is that which has been applied by the Court of Protection since 2009 (and is cited in the standard practitioner works such as Jordans’ Court of Protection Practice and LAG’s Court of Protection Handbook). It has also been applied in reported cases, including that of Charles J in Re UF  EWHC 4289 (COP);  COPLR 93 (at para 18). The test that Hayden J seeks to set out – which arguably includes in it a requirement for P to participate – would make it very difficult to obtain interim relief in cases in which social workers or others are being prevented from seeing and assessing P but in which there is nonetheless proper reason to believe (from surrounding evidence) that they may lack capacity to make the decision in question. An example of the very practical difficulties that can be caused in this context, and the power of s.48 to assist can be seen in Re SA; FA v Mr A  EWCA Civ 1128, a case which also demonstrates how the court can and should calibrate the steps that it will take under s.48 so as to reflect that capacity is still in issue.
The second problem is that, from an outside perspective, one could legitimately ask why Hayden J went to such lengths to decline to engage the interim jurisdiction of the Court of Protection but then, through deploying the inherent jurisdiction, brought about an essentially identical outcome to that which would have been obtained had it been engaged, in other words: (1) requiring rapid steps to be taken to get better capacity evidence; and (2) directing relief against the subject matter of the proceedings to secure their well-being in the interim.
This was not a situation (at least from the judgment) where it could be said that J’s decision-making was currently being compromised by the actions of M (or N) – i.e. this was not the sort of undue influence/coercion case envisaged in Re SA or Re DL, where relief would have been directed against the perpetrator of the abuse. Rather, in the (laudable) aim of securing a richer version of autonomy for J, Hayden J prevented him from taking precisely the course of action which – at least at face value – J was saying he wanted to take. I note in this regard that Munby J (as he then was) held in JE v DE  EWHC 3459 (Fam) that preventing a person from living in the one place that they say they wish to live amounted to a deprivation of their liberty. Although this definition may well not have survived the formulation of the ‘acid test’ in Cheshire West, it nonetheless shows that at least one judge has previously held that preventing an individual from living in one specific place is a very serious interference with their rights (and, if this applied to J’s case, on what basis could the deprivation of his liberty be justified by reference to Article 5(1)(e)?).
In the circumstances, therefore, and with no apologies to returning to this theme, it seems to me that this case provides powerful evidence as to why it is so necessary that a long, hard look is taken, preferably by the Law Commission, at the way in which the inherent jurisdiction is evolving with a view – ultimately – to developing (1) a statutory basis upon which intervention in J’s case can be justified (if we think it should; and (2) principles to govern what steps can be taken by way of such intervention. If such leads us to take a wider view of autonomy, so much the better.
 “English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”
 Whilst this started as a permission application before Munby LJ in the Court of Appeal, he also then, substantively, determined matters having granted permission.
 “But the crucial question in this case, as it seems to me, is not so much whether (and, if so, to what extent) DE’s freedom or liberty was or is curtailed within the institutional setting. The fundamental issue in this case, in my judgment, is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses, specifically removing himself to live at home with JE.”