This case raised novel questions about the court’s inherent jurisdiction in relation to vulnerable adults. The adult in this case was SA, who had been made a ward of court as a minor, in order to protect her from an unsuitable arranged marriage. Having reached her majority, the question for the court was whether it still had jurisdiction to continue that protection. Expert evidence had established that SA did have the mental capacity to marry, thus if the court were to assume jurisdiction it would be for a vulnerable adult who had capacity but still required a degree of protection from the court. SA wished to marry in accordance with the custom of her religion, but it was felt by her local authority and children’s guardian that her parents may have coerced her into making this decision. They viewed SA as a very vulnerable and naive young woman and that their intervention was necessary to protect her welfare.
SA is a Muslim and is profoundly deaf, with no speech or oral communication, and she has visual loss in one eye. She can only communicate by using British Sign Language (BSL). Her non-verbal intellectual functioning is assessed to be in the borderline range of ability although her verbal IQ is likely to be in the learning disability range. According to a Forensic Psychologist (P) who assessed SA, she is only able to comprehend information presented to her in BSL. SA does have a rudimentary but nevertheless clear and accurate understanding of the concept of marriage and of what a marriage contract would entail, so she is definitely capacitated in principle, on that issue. However P was concerned that SA would not understand some of the implications of an arranged marriage of the kind proposed and the potential legal difficulties facing a fiancé, with regard to immigration, the communication issues that she would face and the potential psychological harm that she could suffer, as a result of stress and isolation. In his view there would be risk to her well-being and mental health. SA’s children’s guardian felt that she would be very vulnerable in Pakistan. Her lack of hearing and speech could leave her unaware of any plans being made in relation to her. SA’s naivety and immaturity could also mean that she might not recognise any risk or danger that might arise. The local authority’s view was that SA had been a vulnerable minor and had become a vulnerable adult, and shared the concerns of P, should she be taken to travel abroad. SA lacked capacity to litigate and was represented by a litigation friend ( who together with her counsel, proposed that an order be made that gave some protection to her but which was flexible and would allow her to exercise he right of self-determination, specifically her right to marry under Article 12 ECHR. The order would be designed to provide a practical solution to the concerns raised by the local authority and other professionals but more importantly would reflect what SA herself wanted and expected from a husband.
The question for the court was whether it had jurisdiction to protect SA in this manner. It examined the basis of its jurisdiction in relation to the parens patriae or wardship jurisdiction in relation to children, and for all practical purposes found them indistinguishable. The court exercised a protective jurisdiction in relation to vulnerable adults just as it did in relation to wards of court. Its jurisdiction in relation to incapacitated adults was well known in relation to issues of surgical and medical treatment, contact and living arrangements, as well as in cases of forced marriage. Sheffield City Council v E [2004] considered. It was recognised that this jurisdiction applied to adults who were either temporarily or permanently disabled by mental incapacity from making a decision or who were unable to communicate a decision. According to the judge, the authorities supported the finding of the court that its inherent jurisdiction was not confined to adults who lacked capacity. It was illogical since capacity could be transient or temporary, that the court’s jurisdiction should depend on whether on the precise date of the hearing the adult had capacity or not. Also, an adult had recourse to habeas corpus if he or she was kept confined or under restraint by parents. Apparent consent or refusal could be vitiated by an undue influence of a parent and would have an impact on the issue of capacity to consent. Further, if a minor had required the protection of the court, then why should the court be powerless when he or she reached his or her majority?
The High Court held that its inherent jurisdiction could be exercised in relation an adult even if not suffering from any kind of condition- or clinically-related mental incapacity, who was reasonably believed to be incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors. The point is though that the factors in question did still have to be seen on the balance of probabilities, to vitiate the reality of the consent. The court also helpfully gave a description (rather than a definition) of what it considered a vulnerable adult to be. He or she is someone who ‘whether or not mentally incapacitated and whether or not suffering from any mental illness or mental disorder, is unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation or who is deaf, blind dumb or who is substantially handicapped by illness, injury or congenital deformity.’
The court’s power to exercise its inherent jurisdiction in relation to adults was as wide as its powers when exercising its parens patriae jurisdiction in relation to children, and it could grant whatever relief it thought necessary to promote and safeguard a vulnerable adult’s best interests. Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] followed.
Order granted.
Comment
It is interesting to observe that the court seems to be running ahead of the Mental Capacity Act, whilst it still can, in terms of its embracing an inherently unlimited protective jurisdiction.
The triggering of this jurisdiction by evidence of such matters as constraint, undue influence, coercion, etc, raises the possibility that an adult person suffering under such regimes could be assisted by a third party, such as the Local Authority, or an independent third party, taking the initiative to raise the matter with the court. Domestic violence victims and those who are physically dependent but not mentally so, could be examples of the beneficiaries of such a development.
What is interesting though is that the Mental Capacity Act doesn’t invite quite such a wide approach by the Court of Protection. The definition of incapacity involves evidence about an impairment of or a disturbance of the functioning of the mind or brain. It is agreed that those words are not necessarily inconsistent with the idea of emotional or psychological factors vitiating a person’s capacity; those words are wide enough to incorporate such things as intimidation, oppression, and co-dependency – the word is disturbance not disorder, after all - but it will be interesting to see if the rules of court will still require medical evidence as part of the minimum evidence of incapacity, in light of this broader view being taken by the High Court as to what this jurisdiction about to be made statutory, is actually for.