I wanted talk about the difference between the Court of Protection and the inherent jurisdiction of the High Court because I have seen this cause a bit of confusion more than once in my practice.
I am going to start with a bit of background, so bear with me.
The inherent jurisdiction of the High Court is an old power, not governed by any statutory framework. It is a mysterious being that exists on the periphery of our legal system. But it does so with the very best of intentions. It is a safety net, that catches those few cases where other frameworks can’t help.
It is essentially a throwback to a time before the Court of Protection, when the legal frameworks were less developed and the courts considered there was a need to step in and protect vulnerable adults. With the creation of the Court of Protection, the scope of the inherent jurisdiction of the High Court shrunk, deferring to the statutory framework wherever it applies, but surviving to step in where the Mental Capacity Act isn’t able to provide the protection needed.
Hopefully you are familiar with the concept of incapacity. But just in case, let’s review:
To lack capacity under the Mental Capacity Act 2005 a person must be unable to make a decision for themselves. A person will fall under this definition if they are unable to understand, retain, use or weigh the relevant information for the decision or if they are unable to communicate their decision.
Crucially, to be within the scope of the Mental Capacity Act 2005, that inability must be caused by an impairment or disturbance of the brain or mind. That impairment or disturbance need not be the only cause for the Act to apply, but it must be the main or substantial cause.
If a person is unable to make a decision but not because of an impairment or disturbance of the brain or mind, then the MCA doesn’t provide the answer.
But this has the potential to leave vulnerable people unprotected, and that is where the inherent jurisdiction of the High Court may be able to assist.
It is most commonly used in situations where the person is being controlled or coerced by a third party. Take, for example, someone with a learning disability who is in a relationship with someone they met online. P’s social worker is concerned about the way he or she behaves when with their partner. Safeguarding alerts are raised over time covering financial and emotional abuse. P is no longer engaging with services. The social worker assesses P’s capacity to make decisions about their care, and contact with others, and finds that P isn’t using or weighing the relevant information, but this does not appear to be because of her learning disability. That means the MCA can’t assist in any protections that the local authority may want to put in place.
But the inherent jurisdiction might, if that inability is caused by the influence of their partner.
Crucially though, there does need to be some form of outside influence at play though. The inherent jurisdiction can’t be used in situations where the individual is assessed as having capacity under the MCA but services still consider that P isn’t making a free decision because of their learning disability, for example. Where there is a statutory process, that process must be followed. The inherent jurisdiction only applies in the absence of a statutory framework.
Nevertheless, this is still a useful tool. Yet it is one that many local authorities are reluctant to use, at least in relation to adults. Reliance on the inherent jurisdiction is more common in relation to children where gaps are identified in the statutory framework.
We’ll explore the reasons why in my next post on the inherent jurisdiction.