A Local Authority v LD & Anor.
[2023] EWHC 1258 (Fam)
Hywel Dda University Health Board v P & Anor
22 July 2024
[2024] EWCOP 70 (T3)
Court of Protection
A young woman with learning difficulties is being restricted by her mother. Social services want to assess her, but her mother might run away with her if they know. The judge decided to allow the assessment to happen at home, stopping the mother from taking the young woman away, while keeping the mother in the dark for now to prevent her from running.
Key Facts
- •P is a nearly 19-year-old with suspected learning disabilities and ASD living with her mother, ZJ, and siblings in West Wales.
- •P has been subject to restrictions at home (locked windows, medication cupboard, recording) due to concerns about self-harm.
- •Hywel Dda University Health Board applied for s16 orders to facilitate assessments of P, without notice to P or ZJ due to concerns about flight risk.
- •The court considered whether to make orders under s48 MCA 2005 or the inherent jurisdiction.
- •The court heard evidence from Dr. Bayley (clinical psychologist) and Ms. Hewson (social worker), with conflicting views on P's capacity.
- •There were concerns about ZJ's potential to abscond with P if she became aware of the proceedings.
Legal Principles
Mental Capacity Act 2005 (MCA 2005) – presumption of capacity, best interests, least restrictive option
MCA 2005, sections 1(1)-(6)
MCA 2005, section 48 – interim orders if reason to believe P lacks capacity, matter within court's powers, and acting without delay is in P's best interests
MCA 2005, section 48
Inherent jurisdiction of the High Court to protect vulnerable adults persists despite the MCA 2005.
Re SA [2005] EWHC 2942
Making orders without notice is exceptional and requires careful consideration of the 'protection imperative' and P's wishes and feelings.
Mazhar v Birmingham Community Healthcare NHS Foundation Trust [2020] EWCA Civ 1377
Injunctive relief should be the minimum necessary to address potential harm.
SF (Injunctive Relief) [2020] EWCOP 19
DP v Hillingdon [2020] EWCOP 45 – authoritative approach to the application of s48 MCA 2005
DP v Hillingdon [2020] EWCOP 45
Outcomes
The court did not cross the s48 MCA 2005 threshold.
While a functional deficit in P's decision-making was established, the causal link to a disorder of the mind or brain was not proven. The evidence suggested that ZJ's actions significantly impacted P's ability to make decisions.
P was deemed a vulnerable adult under the inherent jurisdiction.
Evidence suggested coercion, control, or constraint by ZJ.
The matter proceeded without notice to ZJ and in private.
Due to the risk of ZJ absconding with P.
Injunctive relief was granted to allow assessments at home, preventing P's removal by ZJ.
To minimize intervention while addressing potential harm and ZJ's interference with assessments.
Assessments of P's capacity (regarding proceedings, residence, care, medication, and finances) and a medication/treatment review and care needs assessment were ordered.
To determine P's needs and best interests.