Category Archives: Mental capacity and mental health

DoLS, floodgates, and judges who won’t play ball

Deprivation of Liberty seems to be an issue which is putting the doctrine of judicial precedent – where lower court judges have to follow the reasoning and decisions of higher court judges – under considerable strain.

Here, I document – mainly to collate the resources into one place – two recent instances of where the lower courts have been questioning the higher courts.

But actually, this is not new. Continue reading DoLS, floodgates, and judges who won’t play ball


If the State wants to take your child, be prepared to represent yourself!

If you read one judgment this year, read this by Munby on legal aid: As scathing a judgment as you will ever read.

…wrote @JackofKent on Friday. I have read more than one judgment this year, but agree with the “must-read” label. This case ticks so many of my boxes in addition to what it says about legal aid. It’s also about:

  • social work and the law
  • the human right to a fair trial
  • principles of natural justice
  • non-consensual adoption
  • CRPD rights of parents with learning disabilities
  • the Rule of Law and the Separation of Powers

So I felt I really ought to try some commentary, especially when one tweeter asked Continue reading If the State wants to take your child, be prepared to represent yourself!

Abuse by the State: the inherent jurisdiction in Parker J’s hands

I am not hostile to the common law, or to the inherent jurisdiction of the courts with regards to vulnerable adults, which forms part of the common law. For those unfamiliar, the bigger picture looks something like this. Judge-made law goes back a long way in time, and judges were deciding what the law was before the era of detailed legislation. The common law is the law emerging from judges’ caselaw, but in particular on subjects where legislation does not provide an answer. Some common law is old – thus murder, for example, is a common law offence. Other common law is newer, addressing lacunae that legislation does not.

The inherent jurisdiction specifically is the jurisdiction of the court to make decisions with regard to vulnerable adults. Before the Mental Capacity Act, this included adults who lacked capacity; since the Act, it has been held to continue in respect of those adults who have capacity.

Critics of the inherent jurisdiction tend to dislike what seems to be unfettered power in the hands of judges. A reason I am not hostile is that the principle of the supremacy of legislation and the power to legislate away the common law is quite clear. The inherent jurisdiction simply enables a judge to do justice where otherwise he or she would be required to permit an injustice, for want of legislation.

These statements are, of course, at a level of some abstraction. Continuing at that level, one further thing that I think matters is the question of checks and balances. The authority of legislation derives from its coming from the legislature, which have a democratic mandate. Frequently, Parliamentarians criticize any interference that they say lacks a democratic mandate. But just as there is a problem with judges having unchecked power, there is also a problem with legislators having unchecked power: democracy favours the interests of the franchised over the disenfranchised, the majority over the minority, the short term over the long term. Checks upon anyone having unfettered power matter.

But the subject of this blog is the inherent jurisdiction in Parker J’s hands. The immediate inspiration is Continue reading Abuse by the State: the inherent jurisdiction in Parker J’s hands