The Court Of Protection - Recent Cases And Comments On Procedure (Part 2)

31. In Re JK (unreported, July 2009), however, the Official Solicitor argued that this jurisdiction was very limited and should only be exercised very sparingly. The court declined to hold that the individual concerned met the test of being a vulnerable adult. It remains to be seen in which cases, other than those involving forced marriage (as was the case in SA) the High Court will be willing to exercise its inherent jurisdiction. Local authorities should therefore be aware than where someone is judged to be a vulnerable adult, but does have capacity, it will not be a straightforward matter to obtain the intervention of the High Court in the form of a best interests decision. They should, in particular, be aware that the High Court may well only be persuaded to intervene to take such steps as are required to enable the vulnerable adult to take the decision in question without the external pressures identified by Munby J.

32. Some further guidance may be found in PM v KH (Re HM) [2010] EWHC 870 (Fam), which is the most recent decision in an long-running case before, now, Munby LJ under the inherent jurisdiction relating to the abduction of an incapacitated adult. It is of particular importance because Munby LJ sets out in some detail (paragraphs 32 ff) his views as to the powers of the Court in cases under the inherent jurisdiction to make orders of the following kind: (1) injunctive orders directed to a respondent (PM) with custody of an incapacitated adult (HM), including a collection order; (2) orders inviting the assistance of both domestic and foreign public (including judicial) authorities; (3) orders seeking information from various individuals, friends or associates of a respondent (including summonses to court to give evidence), from various banks, insurers and travel agents, from an airline, various telephone and email service providers and the DVLA, and from others thought to be holding monies for PM; (4) freezing orders, some directed to specific individuals in relation to specific assets held by them, the other a general freezing order in respect of all of a respondent's assets which has been renewed from time to time; (5) various orders permitting frozen funds to be used to fund living expenses and to fund not merely PM's legal costs in this country and in Israel but also the living costs of HM and her mother (KH) costs both here and there and the costs of HM's guardian in Israel, together with directing a third part to transfer monies from an account in his name to an account in the name of the Official Solicitor's solicitors, directing the relevant bank to honour those instructions whatever contrary instructions they might have from PM, and subsequently directing the solicitors as to the utilisation of funds in that account and (6) various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.

33. As Munby LJ noted, all of these orders would be familiar in the context of the location and recovery of missing or abducted children; he took the view that the Court had the power to make such orders in the case of an incapacitated adult, at least under the inherent jurisdiction. He was at particular pains: (1) to indicate the basis (paragraphs 36-8) upon which the Court in relation to children had the jurisdiction to order information to be provided by third parties where there is reason to believe that such information would lead to the location of the missing adult; and (2) to indicate the basis (paragraphs 39-40) of the Court's powers in relation to children to seize or block access to funds. He then went on to hold that (citing his own decisions in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867 and Re HM, PM v KH and others [2009] EWHC 2685 (Fam) that the Court has exactly the same powers in relation to a missing adult lacking capacity as it does in relation to a missing child.

34. The principles elucidated by Munby LJ in Re HM would, it seems, be equally applicable to a case proceeding in the Court of Protection (by virtue of s.47(1) MCA 2005, which provides that "[t]he court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court." The case is therefore of importance for anyone concerned with the – relatively rare, but far from isolated – circumstances in which P has gone missing and the involvement of a particular individual is suspected.

    Interaction between COP/JR

35. The interaction and overlap between best interests proceedings and judicial review arises in many cases but has not been the subject of reported decisions. The issue can often arise where the family (or the Official Solicitor) wants substantial levels of support to enable the patient to remain living at home, whereas the local authority would prefer to fund a cheaper and simpler residential placement. Can the judge making the best interests decision consider whether the local authority's proposals are lawful in public law terms? Different judges appear to take different approaches to the problem. In best interests proceedings in the High Court, one judge in a case in which one of the authors was involved expressed the view that the best interests decision is simply a matter of choosing between available alternatives. Any consideration of whether a particular care plan is lawful has to be carried out by way of judicial review, such that separate proceedings should be issued and then joined to the best interests proceedings so that both matters can be determined simultaneously and by the same judge. There is a clear overlap between the two matters, since if the grounds for judicial review of the care plan are that it fails to meet the individual's assessed needs, or that those needs have not been properly assessed, this will have obvious implications for whether the proposed arrangements could be in the individual's best interests.

36. Having obtained a best interests declaration, can a family member or the Official Solicitor rely on it to argue that an failure to implement the care plan approved in the best interests decision is irrational? No doubt the fact of a best interests...