Getting capacity right: the crossover between the inherent jurisdiction and the Court of Protection

LB Redbridge v G, C and F  [2014] EWHC 485 (COP) (Russell J)


This case (the subject of a rather alarmist article whilst ongoing, which I will deliberately not link to as we have now have the full facts) relates to the dividing line between the Court of Protection and the inherent jurisdiction of the High Court.

Russell J had to consider two applications made by the London Borough of Redbridge in relation to an elderly lady, G, considered to be a vulnerable adult.   The first was an application for relief under the inherent jurisdiction.  The second was a proposed application under the MCA 2005 in respect of the same woman following psychiatric evidence of lack of capacity to take the material decisions.

The local authority and the Official Solicitor (who acts as litigation friend for G) submitted that G lacked capacity and fell within the MCA 2005. C (her current live-in carer) submitted that she did not lack capacity under the MCA nor had she been deprived of it by duress or the influence of C and F.

Russell J helpfully gave a summary of the case at the outset which suffices to identify the major points of significance:

2. In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

3. The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

4.  The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

5.  All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

There are a few nuances that require amplification and/or which stand as useful practice points for the future:

  1. Orders were initially made under the inherent jurisdiction in respect of C and F forbidding them from harassing or intimidating G or damaging or disposing of her possessions. The Court also made orders for the local authority to arrange and file an assessment of G’s litigation capacity and capacity to manage her property and affair. Orders were made that C and F had to allow full access to G for the assessment to be carried out. In the event that G was found to lack litigation capacity the Official Solicitor (OS) was invited to act as litigation friend.  These orders were made by a Circuit Judge, sitting as a Deputy High Court judge (paragraph 39): this is helpful confirmation that a Circuit Judge (whether or not they have the requisite designation to sit as a Court of Protection judge) can make such orders if they have a ‘s.9 ticket’ – i.e. an authorisation granted by the Lord Chief Justice under s.9 Senior Courts Act 1981;
  2. Russell J allowed C to rely upon the evidence of an educational and clinical psychologist, a Dr Lowenstein, who had been instructed by C with the assistance of a third party, despite the fact that his report was not approved by the court nor was disclosure to him of documents produced and filed within the proceedings. He had not received any formal instructions.  Russell J agreed to allow the evidence so long as Dr Lowenstein’s evidence could be challenged by cross-examination, because G was aware of it, having been taken to see Dr Lowenstein.  As Russell J noted, “[i]t is important for her to be aware that the court had heard all the available evidence about her capacity,” although she noted that “[t]here can be little doubt that had the local authority sought to adduce evidence in this way Ms Hewson [Counsel for C] would have been vociferous in her condemnation of such an attempt” (paragraph 41);
  3. G was present in court “displaying dignity and determination to get her views across” (paragraph 49).  The proceedings were also held in open court (it seems, because they were held under the inherent jurisdiction), with members of the public and the media present, although subject to a reporting restriction order;
  4. Both an independent psychiatrist and an independent social worker had been instructed to report upon G’s capacity to make decisions in the following areas as regards (1) the people who live with her; (2) contact with others; and (3) financial matters.  Both agreed that G’s capacity to reach decision was undermined by the influence and presence of C and F.  The independent social worker was of the view that the lack of capacity was as a result of the undue influence, whereas the independent psychiatrist was of the view that G was suffering from an impairment or disturbance in the functioning of her mind or brain.  Russell J preferred the evidence of the psychiatrist “given his speciality, expertise and knowledge of the functioning of the mind and brain. The differences in their views reflect the difference in their disciplines and field of expertise” (paragraph 62).   Russell J placed little weight upon the evidence of Dr Lowenstein because he had received no formal instructions, had conducted an entirely inadequate interview in the presence of C (which he acknowledged he should not have done), had not read or assimilated the documents that he been shown (without the leave of the court) and had minimal experience working with the elderly.  He had, in any event, expressed concerns about her ability to manage her own affairs and to conduct litigation;
  5. Russell J applied the two-stage diagnostic and functional test to decide whether G had capacity.  She found, on the basis of the evidence of the independent psychiatrist, that G suffered from significant cognitive impairment which rendered her incapable of taking the relevant decisions.   In particular, whilst G understood some of the information relevant to decision-making, for instance that “C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her” (paragraph 81).

A final wrinkle is that G had executed two LPAs in favour of C, relating to property and affairs and health and welfare.  There was a defect on the instrument for the property and affairs LPA which meant that it could not be registered (C not having submitted the relevant documentation to remedy the defect): Russell J did not therefore need to take any steps in relation to this LPA but could proceed immediately to appoint an independent panel deputy to administer G’s property and affairs.  The LPA was, however, registered because no objections were received within the statutory time frame – an order was made by the Circuit Judge hearing the case some seven days outside that time frame requesting that the OPG did not register the LPA, but this was too late.   Rather, Russell J acceded to the proposal set out in a position statement filed by the OPG to direct C not to exercise any of the powers under the LPA pending the determination of the applications before the Court of Protection.


This is a helpful decision both in relation to the powers of the High Court under the inherent jurisdiction and also in relation to the assessment of capacity of those who are said to be subject to duress.   It comes at a particularly sensitive time given the imminence of the report stage of the Care Bill in the House of Commons and the proposed amendment being advanced by Paul Burstow MP to introduce a power of entry into the Bill (for more on this, see my briefing paper prepared with Action on Elder Abuse, see the recent story in Community Care).

Whilst the transcript presents a compelling case that G lacked the material capacity, I would, though, respectfully note the fact that no mention was made of the decision of the Court of Appeal in PC and NC v City of York in which the court flagged up the danger of approaching capacity assessment in the two stages suggested by the Code of Practice, that danger being that “that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence – ‘mental impairment’ and then ‘inability to make a decision’ – is the reverse of that in s 2(1) – ‘unable to make a decision …  because of an impairment of, or a disturbance in the functioning of, the mind or brain’ [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’” (paragraph 58).  This is a case, I would suggest, in which it was particularly important to analyse the matter with this clearly in mind because of the need to disentangle whether G’s inability to take the decisions in question was a function of an impairment or of the ‘spider’s web’ of relations in which the independent social worker identified her as being caught.

The evidence of the social worker – whom Russell J held to be “highly experienced and well qualified” and “well placed to give an opinion on the relationships and inter-personal functioning within G’s household” (paragraph 61) – was clearly to the effect that the lack of capacity arose from the undue influence of C and F.   Although Russell J preferred the evidence of the psychiatrist in this regard, it does seem that Russell J was, in fact, influenced in part by the evidence of the social worker because she found that G’s capacity was “further compromised by the influence and control of C and F” (paragraph 81).   Such influence and control is, not, however, relevant to the question of whether G was incapacitated for purposes of s2(1) MCA 2005 precisely because it falls outside the causative nexus identified by the Court of Appeal in City of York.  Asking the questions in the reverse order: i.e. ‘is G unable to take the relevant decisions?’ and then ‘is that inability to take those decisions because of an impairment of the mind or brain’ would have made crystal clear that the influence and control of C and F was irrelevant.   Russell J’s approach made no difference upon the facts of this case, but I suggest that it does, still, serve as a useful illustration of the dangers highlighted by the Court of Appeal in City of York.

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3 Replies to “Getting capacity right: the crossover between the inherent jurisdiction and the Court of Protection

  1. Alex, I not sure quite how ‘undue influence’ works in relation to the MCA formulation of the test for capacity. In the context of sexual offences it can ‘negate’ the consent of a person to sexual activity. Clearly, there is no requirement here for an association of any kind with impaired/disturbed functioning of mind. Does this crossover outwith sexual offences? If so, does this mean any ‘lack of capacity’ is not related to the MCA meaning of capacity? Can an otherwise capacitious person choose to acede to the undue influence of another about, say, a medical treatment decision because they value the relationship as a factor they have weighed in making a choice or is that different from the malevolent context typifying negated ‘consent’ in sexual relations? Any clarification would be gratefully received because its all a bit ‘double Dutch’ to me…

    I seem to a lonely commenter presently. I sincerely hope that soon changes…

    1. Chris – apologies for the slow response. The criminal law approach to consent to sexual relations is (as the Court of Appeal confirmed in IM v LM) different because the test of capacity for purposes of the Sexual Offences Act 2003 is a specific test: in particular it is looking at a specific interaction at a particular point in time. See also the recent case of R v Azanzi (which you can find in our case-law database).

      For purposes of the civil law and the MCA 2005 in relation to decisions (not just those regarding consent to sexual relations) there is meant to be a bright line between incapacity (which must originate from an impairment or disturbance of the mind or brain) and vulnerability. PC tells us that the difference can be identified by applying the causative nexus – i.e. it’s only if the impairment or disturbance of the mind or brain causes the functional inability to take a decision. The reality – as per the Redbridge case – is that it can be extremely difficult to identify which side of the line the person falls. It is a shame that PC was not cited by Russell J in this case because it would really have been the ideal case in which to try to give clarity to how the ‘causative nexus’ applies in the case of the enmeshed individual. I hope this helps a bit!

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