Court of Appeal case on protecting older people from being bullied by their relatives

A fascinating decision in the Court of Appeal on a safeguarding vulnerable (older) people issue that is bang on what worries a lot of my colleagues in social work. What about someone who is vulnerable, and possibly being bullied by a relative, but still has mental capacity under the Mental Capacity Act 2005?

The case is: DL and A Local Authority & Others ([2012] EWCA Civ 253 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM Mrs Justice Theis [2011] EWHC 1022 (Fam)

In this case, it was an elderly couple who were being ‘overborne’ (exactly the right word for circumstances I've seen in the past) by their apparently rather controlling son who lived with them, so that it sapped their independent capacity to make their own decisions, even though they still had mental capacity to decide for themselves. Partly it was about controlling their lives, but it seemed also to be aimed at getting an early transfer of the ownership of the house and persuading at least one of the older people to go into a care home. Just the sort of pressure that carers at the end of their tether often feel is justified, but which is also a significant limitation of an older person's freedom.

There are lots of things that a local authority can do to protect people legally, and they’d really worked at this. The local authority: ’…has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996’ (para 9). So don't let anyone tell you there's nothing they can do, and good on the local authority for working at finding a way through, even if it did lead them to the Court of Appeal.

The Appellant (the son) put up what you might call the neoliberal argument: that the court having power to act meant that everyone's freedom to act was being taken over by the namby pamby state. No way: what it is doing is protecting people who need protection: the job of the law across the world and across history.

The judgement makes the point that the ‘inherent jurisdiction’, that is, the common law duty of the court to protect people, still exists, even if the Mental Capacity Act was intended to be a comprehensive response to this sort of situation. This is because even people who are capacitous may still need protection, and the European Court of Human Rights and the Human Rights Act requires the Court to have protection available. this is one of the really important examples of why human rights law is so important to older people and to anyone who may be vulnerable to pressure from others in their family or neighbourhood.

You can guess what their son was doing by the interim injunction that was given:

…restraining the First Defendant from:

(i) assaulting or threatening to assault GRL or ML;

(ii) preventing GRL or ML from having contact with friends and family members;

(iii) seeking to persuade or coerce GRL into transferring ownership of the current family home;

(iv) seeking to persuade or coerce ML into moving into a care home or nursing home;

(v) engaging in behaviour towards GRL or ML that is otherwise degrading or coercive, including (but not limited to): stipulating which rooms in the house GRL or ML can 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.

(vi) giving orders to care staff;

(vii) interfering in the provision of care and support to ML;

(viii) refusing access to health and social care professionals;

(ix) behaving in an aggressive and/or confrontational manner to care staff and care managers (para 9).

The judgement contains a very extensive account of the law, and several other cases, that many colleagues will find useful when advising older people on these problems. 

You can read the full judgement on the Internet, here: Report of Court of Appeal case.