Context of the Mental Capacity Act 2005 (MCA) in gaining access to an adult suspected of being at risk of neglect or abuse: a guide for social workers and their managers in England

Published: October 2014

View: Mental Capacity Act 2005 (MCA)

An assessment to establish whether a person lacks capacity should take place whenever there is concern that an individual might lack the mental capacity to make a proposed decision. A person must be assumed to have capacity unless it is shown that they lack capacity. [4]

Capacity must be assessed in accordance with Sections 2 and 3 of the MCA and decided on the balance of probabilities. Under Sections 2 and 3 of the MCA, it must be established that a person lacks capacity in relation to a specific and relevant matter at the material time. For example, a person lacks capacity to make a decision about whether or not to be admitted to a nursing home the following month for respite care.

In the context of this guide, the capacity in question could relate to, for example, the adult’s capacity to make decisions about their situation or to cooperate with the local authority in undertaking the safeguarding enquiry.

An application may be made to the Court of Protection under the MCA to facilitate gaining access to an adult who lacks capacity or who there is a reason to believe lacks capacity, in a case of suspected neglect or abuse, where that access is being denied or impeded. The Court’s permission to make an application will be needed. [5]

The Court of Protection must apply the fundamental principles in Section 1 of the MCA. The principles include:

Personal welfare orders

The Court of Protection could make an order under Section 16(2) of the MCA relating to a person who lacks capacity’s welfare, which makes the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person. 

Failure to comply with an order of the Court of Protection could be a contempt of Court. The Court can attach a penal notice to the order, warning that failure to comply could result in imprisonment or a fine.

Appointment of a deputy

The Court of Protection may appoint a deputy for a person who lacks capacity under Section 16(2) who can make the decision on that person’s behalf to allow a third party (including local authority practitioners) access to that person.

Interim orders and directions

The Court of Protection could make interim orders and directions under Section 48 if an application to the Court of Protection has been commenced but not yet determined if:

The pending application could be in relation to whether the person lacks capacity, what arrangements would be in that person’s best interests, or an application to authorise a deprivation of liberty.

Interim orders/directions cannot be sought if there is no pending application.

Threshold for an interim order or directions

The Court may make interim orders or directions that include requiring immediate safeguarding steps relating to the adult’s personal welfare to be taken.

Access under an interim order or directions

The interim order or directions may contain directions to permit a person entry to premises and access to that person. Obstruction by a third party of access to and assessment of that person may be a contempt of Court. A penal notice may be attached to the order or directions, warning that a breach could result in imprisonment. The order or directions may be against not just the third party but also that person.

Non-cooperation

The case of 'Re SA; FA' v. 'Mr A' (2010) EWCA Civ 1128, para 52 [6]

In this case, the mental capacity of a young woman needed to be determined. Both she and her mother denied that she lacked capacity. There were great difficulties in communicating with and obtaining the engagement, assistance and cooperation of both daughter and mother. An interim order was made by the Court against both, with a penal notice attached to the following effect:

The order … should not merely contain the appropriate declaration as to the need for the further assessment (confined to the questions of capacity) but also the consequential directions requiring cooperation and facilitation by [the daughter] and her mother. In addition, the order should contain a liberty to apply as to implementation and enforcement, that is, liberty to apply by the local authority and/or the Official Solicitor in the event of difficulty, that application to be made to the Court of Protection.

It may be that the direction will simply be about obtaining appropriate and specialist evidence quickly so that the person’s capacity can be reliably determined.

However, the Court will only make orders or directions against a third party if necessary. If the third party gives an undertaking to cooperate, which the Court believes is genuine, it will not be necessary to make the orders or directions.

The nature of any direction depends on the individual facts of the case, the circumstances of the adult and the seriousness of the urgent decisions in question.

All this will be balanced against the restriction of the adult’s decision-making being kept to a minimum, consistent with his or her best interests.

Inherent jurisdiction of the High Court

‘Inherent jurisdiction’ is a term used to describe the power of the High Court to hear any case which comes before it unless legislation or a rule has limited that power or granted jurisdiction to some other court or tribunal to hear the case. This means that the High Court has the power to hear a broad range of cases including those in relation to the welfare of adults, so long as the case is not already governed by procedures set out in rules or legislation.  It is ‘common law’ developed by the High Court to control the procedures before it and to stop any injustices arising from it being prevented from hearing any case.

It is not normally used in relation to people who lack capacity, because such cases are dealt with by the Court of Protection under the procedures established by the MCA.

However, inherent jurisdiction may still be relevant to an adult lacking capacity if the matter and intervention required are not covered by the MCA; for example, when making a declaration of non-recognition of a marriage or depriving a person of their liberty for the purpose of enforcing physical treatment.

It will also sometimes be necessary for a local authority to make an application to the High Court to ask the Court to exercise its inherent jurisdiction to protect an adult with mental capacity.

The order could in principle be directed against a third party and so relevant to a situation on which this guide focuses: the denial of access by a third party to a person suspected of experiencing, or at risk of, abuse or neglect.

Does the Mental Capacity Act or inherent jurisdiction apply?

The MCA only applies if a person lacks capacity within the meaning of Sections 2 and 3 of the MCA, subject to the Court of Protection powers under section 48 (see above) even if capacity has not been formally determined.

If, however, the person has capacity but cannot take a decision (freely) because of coercion, undue influence or constraint – or other circumstances – then an application can be made relying on the Court’s inherent jurisdiction.

The case of London Borough of Redbridge v. G [2014] EWHC 485 (COP), para 1 [7]

In this case, a local authority made an application to the courts with a view to protecting an elderly woman from a live-in informal carer and her husband. The woman’s mental capacity was at the outset uncertain. So at that point it was unclear whether the Mental Capacity Act or the inherent jurisdiction was applicable:

Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA Sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the Court under its inherent jurisdiction.

Inherent jurisdiction and safeguarding

The courts continue to develop and explore the extent and application of its inherent jurisdiction, which is protective in relation to adults in vulnerable circumstances, and they will endeavour always to avoid undermining the principles in Section 1 of the MCA that an adult can take unwise decisions without this necessarily indicating a lack of capacity.

Orders made under the Court’s inherent jurisdiction may or may not be time-limited.

The courts will also be mindful that rash use of the jurisdiction would risk breaching Article 8 of the European Convention on Human Rights (‘ECHR’) (‘right to respect for private and family life’). However, at the same time, so-called ‘positive obligations’ to protect an individual’s rights under the EHCR may require the courts to intervene by exercising its inherent jurisdiction. This implies that in appropriate cases, local authorities should also be asking the courts to consider exercising its inherent jurisdiction on human rights grounds.

According to the courts, the inherent jurisdiction can be exercised for vulnerable adults, with or without capacity, who are ‘reasonably believed’ to be ‘under constraint’ or ‘subject to coercion or undue influence’, or for another reason ‘deprived of the capacity to make the relevant decision’, or prevented from making a free choice, or from ‘giving or expressing a real and genuine consent’.

There has been no specific definition of what constitutes ‘vulnerable’ in such cases, and the jurisdiction is not confined to ‘vulnerable’ adults, but equally adults at risk of abuse and neglect do not automatically come under it.

Factors to consider when an adult can be considered ‘vulnerable’ have been suggested; for example, people unable to take care of themselves or protect themselves from harm or exploitation by others. Those suffering from mental illness or physical disability may also be considered vulnerable, depending on the circumstances. Clearly, it will be easier to make a case for exercising the jurisdiction in relation to apparently vulnerable adults than for those who do not appear vulnerable.

The important thing to remember when considering applying to the Court to use its jurisdiction to grant an access order is that its purpose is not to overrule the wishes of an adult with capacity, but to ensure that the adult is making decisions freely. In the context of this guide, constraint, coercion or the undue influence of a third party may be preventing the adult’s ability to make free decisions, and recourse to the Court’s jurisdiction may be used to assist professionals in gaining access to assess the adult.

Orders against a third party

In situations such as those on which this guide focuses, it is possible that an order could be made against the person responsible for undue influence, constraint or coercion if this is also necessary to protect the adult in question. In one case, an order was contemplated against a son who was allegedly mistreating his parents. But even in such a case, the Court would want to scrutinise carefully any application for such an order, especially if the person(s) to be protected – in this case, the parents – do not support it. For instance, if the third party undertakes, plausibly, to cooperate on relevant matters, then the Court will not grant an injunction against them.

An order under inherent jurisdiction against a third party relating to access to an adult with capacity

The case of 'A Local Authority' v. 'DL' [2010] EWHC 2675 (Fam), Charles J, para 9 [8]

In this case, when a man was allegedly mistreating his elderly parents, GRL and ML (who, at the outset, both had mental capacity), the local authority sought an order from the High Court prohibiting him from acting unlawfully towards them.

Within the list of prohibitions sought, two stand out in relation to this guide: not interfering with care and support and refusing access to health and social care professionals. The courts confirmed that inherent jurisdiction did exist in principle for such orders (see 'A Local Authority' v. 'DL' [2011] EWHC 1022 (Fam), Theis J, para 53, and 'A Local Authority' v. 'DL' [2012] EWCA Civ 253, Court of Appeal, para 63).

The order sought was to prohibit the son from doing the following (emphasis in relation to access added):

  • assaulting or threatening to assault GRL or ML
  • preventing GRL or ML from having contact with friends and family members
  • seeking to persuade or coerce GRL into transferring ownership of the current family home
  • seeking to persuade or coerce ML into moving into a care home or nursing home
  • engaging in behaviour towards GRL or ML that was otherwise degrading or coercive, including (but not limited to): stipulating which rooms in the house GRL or ML could use; preventing GRL or ML from using household appliances, including the washing-machine; ‘punishing’ GRL or ML, for example, by making GRL write ‘lines’; shouting or otherwise behaving in an aggressive or intimidating manner towards them
  • giving orders to care staff
  • interfering in the provision of care and support to ML
  • refusing access to health and social care professionals
  • behaving in an aggressive and/or confrontational manner to care staff and care managers (see 'A Local Authority' v. 'DL' [2011] EWHC 1022 (Fam), Theis J, para 6).

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