The Law Commission of England & Wales published its 14th programme of law reform on 4 September – i.e. its proposed plan of work for the years ahead. It includes ten new projects (alongside existing projects such as Disabled Children’s Social Care, on which I was a consultant; the final report for which should be out shortly). These range widely over such matters as consent in the criminal law, public sector automated decision-making, deeds and the defence of insanity. My ears pricked up when I saw the section on proposals that the Law Commission has not been able to take forward, but which may (if resources allow) be possible to accept as references from Ministers during the course of the programme. Amongst these included the following:
VULNERABLE ADULTS AT RISK
4.13 The proposed vulnerable adults project would review the law relating to intervention by the state in the lives of vulnerable adults who have mental capacity, but who are at risk of exploitation or abuse.
4.14 The Law Commission previously published a report on this area in 1995. Its recommendations were not taken forward. As a result, over the last 20 years, the High Court has developed the use of the inherent jurisdiction to deal with such cases. The scope of this jurisdiction is neither clearly defined nor consistently applied. Views differ on fundamental issues such as whether the court may make orders against the vulnerable adult themselves, on significant matters such as where they live, and the role (if any) that the adult’s consent, or lack of it, plays in the decision-making process. The end result is a system where local authority stakeholders lack certainty as to the actions they can lawfully take to safeguard the welfare of vulnerable adults within their area, and whether and when judicial sanction is required.
4.15 A project in this area would look at when the law should permit or require the state to take action in relation to a vulnerable adult, what actions can or should be taken, and the principles to be applied by the courts in sanctioning such actions.
I have written extensively over the years about the need for such a project (see, for example, this briefing from 2017; I am also very aware, before you all write in at once, that the term ‘vulnerable’ is one that causes severe allergic reactions – even if it is the one that the High Court uses). To the list of reasons set out above as to why such a project is needed (all of which I would entirely agree with), I would also add:
- The challenge to the very existence of the inherent jurisdiction of the kind being exercised by the High Court recently levelled by Professor Rob George KC (and endorsed in ringing terms by Lady Hale). This challenge suggests that the ‘great safety net’ of the inherent jurisdiction really does appear to have significant conceptual holes in it.
- We have learned much over the life of the Mental Capacity Act 2005 about quite how messy and complex it can be to disentangle capacity and influence (see this work led by Dr Kevin Ariyo analysing the case law of the Court of Protection and High Court). Should so much turn – for everyone – on which side of the line a person is placed? The answer may well be ‘yes,’ but it is a question which I suggest requires answering urgently.
- The debates surrounding the Terminally Ill Adults (End of Life) Bill as it progresses through Parliament are flagging up the challenges of identifying undue influence, the radically different shapes that such influence might take, and the different shapes that ‘vulnerability’ might manifest itself as, dependent on such factors as the social capital of the person.
- That Northern Ireland has recently placed before the Northern Ireland Assembly an Adult Protection Bill which (from this perspective) includes provisions which ‘wrap around’ the Mental Capacity Act (Northern Ireland) 2016, in similar fashion to the way in which Singapore enacted a Vulnerable Adults Act 2018 to ‘wrap around’ the Mental Capacity Act 2008. Such legislation might provide models for consideration, as in both jurisdictions the relevant mental capacity legislation is functionally identical to the MCA 2005 (albeit that, in Northern Ireland, the MCA (NI) 2016 is not yet fully in force).
I do very much hope, therefore, that it is possible for the Law Commission to pick up the baton again some 30 years after it last looked at this area.
