“Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.”
Immediately, I know I have a challenge. On the one hand, I have defended the inherent jurisdiction. On the other hand, I, too, have written expressing my concern about the extension and misuse of the jurisdiction. So where will I stand on this latest case?
Fundamentally, I agree that we need a judicial decision that points out that what happened in this case was wrong. And I agree that it is frustrating but correct that this is the wrong case to do it. (The case targets the judge for an alleged human rights breach; but the judge had been fed faulty information by the NHS Trust…) But here, I want to argue that what went wrong was not a case of “inevitable judicial mission creep”. I want to argue that it was misdirection, and that the misdirection is contained within the very proposition that the court’s powers under the inherent jurisdiction are theoretically limitless. To put it another way, my contribution to putting this genie back into the box is to try to set out why, legally, I do not believe that the court’s powers under the inherent jurisdiction are theoretically limitless, because we can identify what the limits are.
I don’t underestimate the challenge. References to “theoretically limitless” go back at least a quarter of a century. The earliest reference I have found is this:
“Nor, I think, is any assistance to be derived from considering whether it is theoretically limitless if the exercise of such a jurisdiction in a particular way and in particular circumstances would be contrary to established practice.” [Re R (A Minor) (Wardship: Medical Treatment)  4 All ER 177]
And another early reference also emphasises the futility of arguing “theoretically limitless”:
“Although the courts had traditionally declined to define the limits of the wardship jurisdiction and it was habitually described as “theoretically limitless”, in practice its exercise was limited.” [In re R (a Minor) (Wardship: Restraint of Publication) (1994) Times, 25 April]
Of course, both those references were cautioning that such a theory provides no basis for judicial expansionism. But they don’t say what the limits might be. Here, therefore, I set out three important limits on the use of the inherent jurisdiction. I start with common law, then human rights, then legislation.
First, however, for those not familiar with the term, or with its meaning, or how it is applied, a brief introduction. “Inherent jurisdiction” refers to a jurisdiction that the courts have in themselves, principally in contrast to a statutory jurisdiction, which is a jurisdiction that a court has because it has been bestowed on the court by legislation. The inherent jurisdiction exists because it is rooted in the mists of time before courts needed to look to legislation for their authority – they derived their authority from the monarch. This is reflected in the name of a key principle which underpins both wardship for children, and the inherent jurisdiction in respect of vulnerable adults – parens patriae, “parent of the nation”. It is therefore firmly rooted in the common law.
In practical terms in relation to vulnerable adults – which is what we are concerned with here – the idea is that the court has an inherent power to step in to protect a vulnerable adult. While we now have the Mental Capacity Act 2005 to provide the statutory framework in respect of adults who lack mental capacity to make a decison, the argument is that the common law is still able to fill the gaps where there is no legislation, and therefore the inherent jurisdiction can still be used to protect a vulnerable adult who has the mental capacity to make a decison.
In the case in point, an adult with a physical disability, but who had mental capacity to decide for himself (which we would generally recognise as allowing him to choose to make an unwise decision) was made subject to an order which resulted in his being forcibly removed from his home by an ambulance crew accompanied by two police officers, and deprived of his liberty to be treated in hospital.
Boundaries under Common Law
As a starter for ten, it seems to me that a statement that the inherent jurisdiction is theoretically limitless cannot sit well with common law principles anyway. The common law is built up around judicial precedent, and precedent is built up around the ratio of decisions (that part of the decision that is necessary to decide the case in point). An assertion that “I can do this because I can do anything” does not sit well with the incremental development of the law, and should not have ever been a necessary part of the reasoning towards any judge’s conclusion in any case. I presume it is not the ratio of any case, no matter how often it is repeated.
Judges are always bound to act within the rule of law. They do not hesitate to criticise the executive for failing to understand the rule of law:
“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.” [para 68, UNISON, R (on the application of) v Lord Chancellor  UKSC 51 (26 July 2017)]
The rule of law equally constrains the judiciary to act within their powers.
But I’d rather not just argue that the jurisdiction is limited because it ought to be limited; I want to show that we know what the limits actually are.
Two important cases often relied upon as relevant to the “rediscovery” of the inherent jurisdiction for adults are A Local Authority v MA & Ors  EWHC 2942 (Fam) (15 December 2005) and DL v A Local Authority & Ors  EWCA Civ 253 (28 March 2012). The former case, after reviewing the caselaw, sets out three broad categories of circumstances in which the jurisdiction might apply. The first two of these relates to people who may be subject to duress, coercion, or undue influence from another person. I will return to the third category later. But there is an important paragraph, sometimes overlooked, that is central to understanding the limits of the jurisdiction:
“There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.” [para 79, A Local Authority v MA & Ors  EWHC 2942 (Fam) (15 December 2005), my emphasis]
The key word here is “capacity”. It is not vulnerability (whatever that might mean) but capacity that frames the boundaries of the inherent jurisdiction. The argument is that even though a person might have the mental capacity to make a decision for themselves, their capacity to make a decision for themselves might be limited or non-existent for some other reason – typically, because their freedom to make a decision for themselves has been curtailed by the actions of some other person.
Conceived in this way (and this is indeed how I did come to reconcile myself to the idea of the inherent jurisdiction in relation to adults), the inherent jurisdiction is not about protecting people by compelling them to do something that they do not want to do. Rather, it is about protecting them by removing from them the constraints upon their freedom to decide for themselves. By protecting them from having their will overborne by some other person’s coercion or duress etc, the court is giving them back their freedom, not taking it away from them.
And this seems to be pretty much exactly how the Claimant advanced their argument in the current case:
“Mr Mazhar seeks to argue… that a vulnerable person’s alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity…
The Lord Chancellor… does not however accept… that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect persons who fall outside the scope of the Mental Capacity Act 2005.”
[paras 7 and 8, Mazhar v The Lord Chancellor  EWFC 65 (12 October 2017), my emphasis]
On my reading of the authorities, Mr Mazhar is correct and the Lord Chancellor is wrong. One interpretation would be that far from using the inherent jurisdiction to protect a person whose capacity had been overborne by the will of another, and give them back their freedom to decide for themselves, the inherent jurisdiction was used to overbear their will, and take away their freedom. Hence, it was a wrong use of the jurisdiction.
How can this have come about? I fear the clue is in the third category identified in Munby’s judgment. There, he says this:
“What I have in mind here are the many other circumstances that may so reduce a vulnerable adult’s understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.” [para 78, A Local Authority v MA & Ors  EWHC 2942 (Fam) (15 December 2005), my emphasis]
There, in a nutshell, if he is right, is the basis for asserting theoretically limitless powers. Who is not subject to one of those things from time to time? Who, therefore, can be immune from the court assuming the power to direct us at such times? I propose two answers to that. Firstly, the clue is in the paragraph cited earlier, setting out that the test relates to capacity rather than vulnerability. Indeed, that is the paragraph that immediately follows. Category 3 looks a lot like a list of people who are vulnerable. As such it looks like authority for the proposition that the test is vulnerability. But it has to be read alongside the following paragraph, emphasising that those characteristics do not suffice in themselves to give the court jurisdiction; the impaired capacity to make a decision is the central element. But secondly, I frankly doubt the authority of that third category. It is, of course, not in the ratio of the decision. And until this week and this case, you would look hard to find an example of the jurisdiction being used in this way, in respect of a person who had capacity (in the widest sense) to make the decision.
Indeed, the caselaw emphasises there is no such thing as a jurisdiction in relation to vulnerable adults per se – that shorthand is part of the problem:
“The inherent jurisdiction is not confined to those who are vulnerable adults, however that expression is understood, nor is a vulnerable adult amenable as such to the jurisdiction. The significance in this context of the concept of a vulnerable adult is pragmatic and evidential: it is simply that an adult who is vulnerable is more likely to fall into the category of the incapacitated in relation to whom the inherent jurisdiction is exercisable than an adult who is not vulnerable.” [para 83, A Local Authority v MA & Ors  EWHC 2942 (Fam) (15 December 2005), my emphasis]
Boundaries under Human Rights Law
I’ve suggested earlier that the inherent jurisdiction is grounded in the common law. What happens when the common law comes face-to-face with human rights law? That is a question with which the courts have increasingly had to grapple. Moreover it is plainly an issue that need not have troubled those who first coined the “theoretically limitless” mantra.
A number of human rights cases have had to address themselves to the question what it means to be “in accordance with the law”. The answer is that it is not enough to be able to point to a piece of legislation:
“In order to be “in accordance with the law” under article 8(2), the measure must not only have some basis in domestic law… but also be accessible to the person concerned and foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements. First, a rule must be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct… Secondly, it must be sufficiently precise to give legal protection against arbitrariness:
“it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law … for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise…”
… the obligation to give protection against arbitrary interference requires that there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. This is an issue of the rule of law and is not a matter on which national authorities are given a margin of appreciation.”
[paras 79-80, The Christian Institute & Ors v The Lord Advocate (Scotland)  UKSC 51 (28 July 2016), my emphasis]
It has been ruled that it is possible for the common law to meet the standards. So human rights law does not preclude the use of common law powers. But they are still required to be predictable in their application and effects, not capricious, accompanied by appropriate remedies etc. Note in bold above, the squeamishness about an unfettered power, and look again at those words “the Courts powers under the inherent jurisdiction are theoretically limitless”!
You may see whether this point is heading. An assertion that “the Courts powers under the inherent jurisdiction theoretically limitless” is frankly inviting a response “then in that case they are not human rights compatible”. You can’t have it both ways. You either have to have common law powers that are sufficiently clearly framed, predictable, proportionate, necessary etc, or you have to invite a ruling that they are not human rights compliant.
There is more. We need to consider the specific human rights that are engaged by this case. The Article 5 right to liberty is what is described as a limited, special or restricted right. This means that the human right contains within itself an exhaustive list of exceptions. It is not like a qualified right, where one has to do a balancing act and decide whether it is necessary in all the circumstances to interfere with the right. Sure, deprivation of liberty cannot take place unless it is necessary; but additionally it cannot take place unless it is for one of the reasons listed.
And the deprivation of liberty in this case was not for one of the reasons listed. And therefore irrespective of any view on proportionality and necessity, it was unlawful. This much was actually agreed in the hearing in this case:
“The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order.” [Mazhar v The Lord Chancellor  EWFC 65 (12 October 2017)]
Moreover, we have been here before. The Bournewood litigation, the litigation that led in due course to the introduction of the Deprivation of Liberty Safeguards, addressed the very question of whether the common law doctrine of necessity, under which a person could be deprived of their liberty on doctors’ say-so, met the requirements of human rights law to be sufficiently predictable and certain etc. The court ruled against the United Kingdom because the common law framework and its procedural safeguards as a whole, were insufficient to protect the human rights of HL.
If we cannot learn the lessons of history, we are doomed to repeat the mistakes of history. The mistakes of history last time included a failure to appreciate the breadth of what constituted a “deprivation of liberty”. The ensuing litigation exposed the “acid test” about being completely under another’s control and not free to leave, and we found ourselves realising that far more people were being deprived of their liberty than we had thought hitherto, and with a hundred-thousand-cases backlog in the Court of Protection.
Boundaries Arising from Legislation
It is perhaps self-contradictory to suggest that legislation sets out the boundaries of the inherent jurisdiction. After all, the jurisdiction exists precisely because and to the extent that it has not been removed by legislation.
There is legislation that expressly refers to it, section 100 of the Children Act 1989 being a classic example. That legislation expressly frames the boundaries of the jurisdiction in respect of children. The Mental Capacity Act perhaps unfortunately, does not contain an equivalent in respect of adults.
Nonetheless, another issue the Courts have had to address is the interface between legislation and the inherent jurisdiction. Is it the case that the jurisdiction is preserved in order to bring about the intentions of the legislation, in circumstances that the legislation has not catered for? That would appear to be the Children Act approach, epitomised by its use to deal with problems such as radicalisation, or grooming injunctions in respect of child sexual exploitation. Or is it the case that the jurisdiction permits doing something that the legislation would not permit? There is a world of difference as it seems to me, between using the inherent jurisdiction to construct an order that complies with the core principles in section 1 of the Children Act, and using the inherent jurisdiction to construct an order that defeats the core principles in section 1 of the Mental Capacity Act.
And yes, I am saying that this Order does the latter. Because the core principles in section 1 include a presumption of capacity, and the presumption of the right to make an unwise decision if you have capacity.
I suggest, therefore, that there are clear limits on the powers available under the inherent jurisdiction. It is limited by the historical framework within which parens patriae was developed to protect people who lacked capacity in some way. It is limited by the human rights framework that requires foreseeability, accessibility, and an adequate remedy in respect of its use. And it is limited by an expectation that it fills the gaps that legislation does not address, rather than is used to subvert the core principles of legislation. Better, I suggest, to abandon the dictum that it is “theoretically limitless” altogether, rather than to lose sight of those limitations.