Mental capacity – the ability to legally make decisions for ourselves – is a concept which easily leads to difficult issues. It contains elements of legal theory, ethics, practicality, and human rights, and with such a mixture lies the potential for profoundly challenging questions.

One of these dilemmas was recently considered by the Court of Appeal: can someone with mental capacity be overruled in decisions they make for themselves? If so, when and how can this be justified?

The case was that of A Local Authority v BF [2018] EWCA Civ 2962 and it is the focus for this post. It involved a unique set of circumstances and so its direct application to your life will likely be limited, but it also involved many fascinating aspects of the concept of legal capacity and the interaction between law, ethics and human rights. As such, this post is unashamedly heavy on legal theory, though hopefully in a way that provides interesting background to the idea of mental capacity!

Mental capacity

For many legal decisions, such as making a Will or appointing an Attorney under a Lasting Power of Attorney, mental capacity is a necessary part of the process.

Much of the law on mental capacity is contained within the Mental Capacity Act 2005, with further detail provided by its accompanying Code of Conduct. These contain a number of fundamental principles to be kept in mind when trying to assess mental capacity, and when making decisions on someone else’s behalf.

Further detail on how mental capacity works in practical terms can be found in our factsheet on Mental Capacity.

Particularly relevant to the case of A Local Authority v BF is the principle that:

“A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

In other words, if you are an Attorney or Deputy considering whether to make a decision on someone else’s behalf, you cannot base your assessment of their mental capacity on whether you agree with their proposed choice, or whether it seems sensible.

Background of the case – A Local Authority v BF

The case involved a 97-year old man (referred to as BF for anonymity) who was diabetic, blind in both eyes, and suffered from osteoarthritis.

He had lived in his house for many years and, following the death of his wife some years previously, he now shared it with his son, referred to as KF.

The Local Authority had been providing care to BF at his home, but had faced considerable obstacles throughout from KF, who had long-term problems with alcoholism and drug addiction. KF was aggressive and obstructive to care workers visiting the house to help BF. Against this backdrop, the house also fell into a very poor state of disrepair in great part due to KF preventing the Local Authority from carrying out work to the house for significant periods of time.

Eventually, the Local Authority were authorised to withdraw their care for BF, on the basis that there appeared no way in which they could reasonably provide it. Some months later, however, following a number of calls BF made to the care line, the Local Authority sent care workers to visit him. He was found living in a horrendous state – only partially-clothed and sitting on a bare bed-frame amidst filthy, disgusting conditions. He said that he had had nothing to eat or drink for several days.

BF was taken into care. The Local Authority also had concerns about BF’s health should he return to the house and so they sought and obtained an urgent court order. The order imposed several restrictions upon BF:

  • He could not live at his home.
  • He could not live with his son, KF, at any address.
  • He had to live at a specified care home – unless agreed with the Local Authority that he could live elsewhere (within the above restrictions).

Legal proceedings were also taken to remove KF from the house. At the time, BF understood and complied with the Local Authority’s actions. However, the removal of KF did not take place.

A mental capacity report was carried out at this time. It confirmed that BF had the mental capacity to decide his own living arrangements and understood the risks to himself, and others, of continuing to live with KF.

Shortly after, however, BF decided he was not happy living at the care home and wanted to return to his house and live with his son. The Local Authority requested an urgent court hearing to remove the injunction and allow BF to return home. However, despite BF’s firm wish that he wanted to return home – and the confirmation that he had the required mental capacity to make this decision – the court refused to lift the injunction. Instead, the order was extended until a full hearing on the matter could be conducted.

The Local Authority and lawyers representing BF applied for permission to appeal the decisions. A Court of Appeal judge was faced with deciding if there were sufficient grounds for a full appeal hearing to take place.

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The Court of Appeal’s decision

Although the Court of Appeal only had to decide whether to grant permission to appeal at this stage, the matter still involved assessing whether the original judge had been right to continue preventing BF from returning home.

Fundamentally, the Court of Appeal stated that the High Court had an ‘inherent jurisdiction’ to protect vulnerable and incapable adults. This legal authority was separate from the provisions of the Mental Capacity Act and so was not necessarily restricted by those provisions.

The Court acknowledged, however, that this inherent jurisdiction must comply with human rights law. The European Convention on Human Rights has two articles which are particularly relevant to BF’s case. The Court addressed them as follows:

  • Article 8 (The right to respect for private and family life, home and correspondence) – The Court stated that subsection (2) allows for rights to be infringed if this is justifiable in protecting the health of the individual in question, though only if the action taken in doing so is necessary and proportionate.
  • Article 5 (The right to liberty and security) – the Court stated that subsection (1)(e) allows for (among other things) the lawful detention of people in certain circumstances who are ‘of unsound mind’.

‘Unsound mind’ would appear to be similar to the idea of ‘lacking mental capacity’. However, the Court was clear that the two are distinct, saying it was possible for someone to have mental capacity but still to be of unsound mind.

The Court of Appeal refused BF and the Local Authority permission to appeal and directed that the injunction should continue until the full hearing requested by the original judge had taken place.

In justifying the decision, the Court stated that BF was unquestionably a vulnerable adult given his age, blindness and other health conditions. As such, he needed protection, and this could not be adequately provided at his home.

The Court also stated that, at first sight, it was possible BF was of unsound mind. This was a question which could only be considered with full examination of evidence undertaken at a full hearing.

The Court held it more generally consistent with BF’s human rights to maintain the temporary suspension of his liberties, until a more in-depth assessment could be made at a full hearing.

Comments on the case

As the Court of Appeal stated, the effects of this decision are temporary. We understand that a full hearing exploring the issues of the case has taken place at the time of writing, but no judgment has yet been published.

However, no matter how temporary, it may be difficult to accept the notion that a court could prevent someone from exercising their own free will, especially when it is backed by expert confirmation that that person is mentally capable of doing so.

On the other hand, the case concerns a unique situation. When the details of the case are viewed as a whole, it is just as difficult to accept that allowing BF to exercise his free would have been best for his overall welfare.

Could Attorneys or Deputies overrule decisions in this way?

This case does not open the way for Attorneys or Deputies to overrule the decisions of the vulnerable people they have been appointed to protect. The key factor is that the court’s power comes from its inherent jurisdiction to protect vulnerable people.

Attorneys and Deputies have no such power. If the person in question has mental capacity to make a decision, Attorneys and Deputies must still abide by the principles of the Mental Capacity Act and allow that person to make the decision if they wish to.

As mentioned above, an Attorney or Deputy cannot take an unwise decision as proof of lack of mental capacity. However, if you are concerned for the welfare of a loved one, who may be vulnerable, you can apply to the Court for guidance or intervention. The Court might not agree but they may have the power under their inherent jurisdiction to safeguard your loved one.

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