This is the follow up to the permission decision of Baker LJ reported as Re BF, and represents the substantive hearing of the application before Hayden J for declarations from the local authority that they had discharged their obligations to the man in question, now identified as Ronald Meyers, under the Care Act 2014 and Human Rights Act 1998.
The factual background to the case can be found in our previous report, but in short terms the dilemma before the court was what, if anything, could be done to secure the interests of a 97 year old man with physical disabilities who was determined to live with his son in deeply squalid conditions in the father’s home.
Hayden J was satisfied that Mr Meyers “was entirely capable of and has the capacity (within the definition of the Mental Capacity Act 2005) for determining where he wishes to reside and with whom.” Hayden J also made clear that he did not consider that Mr Meyers was vulnerable so as to bring him within the ambit of the inherent jurisdiction merely because he was blind, and he was clear that Mr Meyers did not satisfy the criteria of being of “unsound mind” so as to bring him within the scope of Article 5(1)(e) were his circumstances to amount to a deprivation of his liberty.
Normally, this set of conclusions would suggest that no court could intervene, and that any choices that Mr Meyers made, no matter how apparently unwise, would have to be respected. Hayden J, however, considered that Mr Meyers’ son, KF:
41 [..]… is needy, irrational, frequently out of control as well as manifestly emotionally dependent on a father who, despite the alarming history of this case, he obviously loves. KF’s influence on his father is insidious and pervasive. It triggers Mr Meyers’s sense of duty, guilt, love and responsibility. These, in my assessment, are pronounced facets of Mr Meyers’s character, reflected in a different way in his sense of duty, love for his country and pride in his medals. In this particular context however, these admirable features of his personality have become confused and distorted in a relationship in which the two men have become so enmeshed that the autonomy of each has been compromised. In reality, KF exerts an influence over his father which is malign in its effect if not in its intention. The consequence is to disable Mr Meyers from making a truly informed decision which impacts directly on his health and survival.
42. I am profoundly sympathetic not only to Mr Meyers’s challenging circumstances but to his eloquent assertion of his right to take his own decisions, even though objectively they may be regarded as foolhardy. As I emphasised in Redbridge London Borough Council v SNA  EWHC 2140 (Fam)], I instinctively recoil from intervening in the decision making of a capacitious adult. However well motivated the State may be in seeking, paternalistically, to protect people from their own unwise decisions, it is a dangerous course which has the potential to threaten fundamental rights and freedoms. Again, as I said in Redbridge London Borough Council v A, the inherent jurisdiction is not ubiquitous and should be utilised sparingly. Here Mr Meyers’ life requires to be protected and I consider that, ultimately, the State has an obligation to do so. Additionally, it is important to recognise that the treatment of Mr Meyers has not merely been neglectful but abusive and corrosive of his dignity. To the extent that the Court’s decision encroaches on Mr Meyers’ personal autonomy it is, I believe, a justified and proportionate intervention. The preservation of a human life will always weigh heavily when evaluating issues of this kind.
Hayden J therefore required an order to be drawn up to reflect the objective that:
45. […] Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation. I do not compel him to reside in any other place or otherwise limit with whom he should live. For the avoidance of any doubt, Mr Meyers may live in his own bungalow, with an appropriate package of supportive care, conditional upon his son’s exclusion from the property. This, to my mind, is the desirable outcome to this case. In this way I restrict Mr Meyers’s autonomy only to the degree that is necessary to protect him, a measure which I have concluded is a proportionate interference with his Article 8 rights. As I have analysed above, it is the dysfunctional relationship between Mr Meyers and his son that serves to occlude his decision-making processes, concerning where and with whom he should live. The real issue is whether the framework of an order, giving effect to this, constitutes a deprivation of liberty at all. I am clear it does not.
Although Counsel for the parties had agreed in the hearing with this proposition, they had both reconsidered and had subsequently contended such an order would give rise to a deprivation of Mr Meyer’s liberty. Hayden J, however, held that:
56. Properly analysed, the ambition here is not to confine Mr Meyers to the Care Home, but to protect him from the grave danger that living in the bungalow with his son has already been demonstrated to represent. To safeguard him, by invoking the inherent jurisdiction of the High Court, it is necessary to restrict the scope and ambit of his choices, not his liberty. It is important to highlight that there remain a range of options open to him. The impact of the Court’s intervention is to limit Mr Meyers’s accommodation options but it does not deprive of his physical liberty which is the essence of the right guaranteed by Article 5.
57. It is also necessary to restrict the extent of Mr Meyers’s contact with his son in order to keep him safe. I am bound to say that I do not see that this should represent an insuperable challenge, even anticipating, as I do, that Mr Meyers may not cooperate. To the extent that this interferes with his Article 8 rights it is, again as I have indicated above, a necessary and proportionate intervention. I propose that the Order should be drafted in terms which provide for these restrictions.
Hayden J refused to make the declarations sought by the local authority that it had discharged its responsibilities towards Mr Meyers. He did not then prescribe what the local authority should do, although noted that he considered that the ideal solution would be “for Mr Meyers to return to his bungalow with a suitable package of support, his son having been excluded from the property. I should hope that the Local Authority will endeavour, within the framework of appropriate injunctive relief, to make provision for contact between Mr Meyers and his son.”
All the comments that we made in relation to the BF judgment stand in relation to the final judgment in this case, although (on its face) the judgment looks even more like a case of ‘be careful what you wish for’ in relation to disability-neutral approaches to intervention predicated upon vulnerability. In practical terms:
The judgment is a stark reminder that
reliance upon the presumption of capacity and the “right” of individuals to make unwise decisions3 cannot, in and of itself, discharge public bodies of their safeguarding obligations, especially where they may be charged with the positive duty under Article 2 ECHR to take practicable steps to secure that person’s life;
Further than that, the judgment is a reminder that, especially where life is at risk, local authorities are under an obligation not merely to investigate, but also to take action, which may include seeking the authority of the court to carry out draconian interventions;
Although intended to be facilitative, rather than dictatorial, in its approach, the great safety net of the inherent jurisdiction is capable of “facilitating” a vulnerable adult to move in one direction, by removing all other available choices; and
Necessity and proportionality seem to be the guiding principles in the exercise of this jurisdictional hinterland, rather than any pretense of best interests or will and preferences.
As to Article 5 ECHR, we presume that Hayden J took the view that there was no deprivation of liberty whereas Baker LJ had proceeded on the basis that there had been because the order as it stood before Baker LJ had required Mr Meyers to live at the care home, whereas Hayden J was seeking to bring about a restriction in the choices available to Mr Meyers rather that confining him to a particular location. We note that, had this case come before Sir James Munby, he might have taken a somewhat different view as to whether Mr Meyers would be deprived of his liberty by virtue of the order to be made by Hayden J. In JE v DE  EWHC 3459 (Fam), in the long ago days of 2006, he observed in relation to a submission that a local authority:
“… [had] no objection in principle to DE living elsewhere than at the Y home, for instance either with his daughter or in some other residential establishment. That may be, but it wholly fails to meet the charge that he is being “deprived of his liberty” by being prevented from returning to live where he wants and with those he chooses to live with, in other words at home and with JE.”
Finally, those following the Government’s intention to introduce a domestic abuse bill may want to test the facts of this case against the scope of that bill, because it would, on its face, potentially fall within them (the bill, importantly, making clear that domestic abuse can be perpetrated by adult children upon their parents as they are ‘personally connected’). It is perhaps striking, one may think, that there is no suggestion in the context of that bill that orders could ever be made against the victim of abuse, as opposed to the perpetrator.
2 Katie having been acted for the local authority, she has not contributed to this report.
3 There is no such right, at least to be spelled out of the MCA: the MCA, rather, provides a person cannot be taken to be unable to make a decision merely because they make an unwise decision. That the decision is unwise may well be a trigger to investigating whether, in fact, they have capacity to do so.
Ed. As ever, I would like to express my thanks and gratitude to specialist barristers:
Alex Ruck Keene
Simon Edwards (P&A)
for their kind permission to reproduce the case summaries above which first appeared in Mental Capacity Law Newsletter, March 2019, published by 39 Essex Chambers.