Private Client analysis: According to Bethan Harris, barrister at Garden Court Chambers, the case of Southend-on-Sea Borough Council v Meyers highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy.
This article was first published on Lexis®PSL Private Client on 8 March 2019.
Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam)
What are the practical implications of this case?
The case of Southend-on-Sea Borough Council v Meyers highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults, and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy.
The court held that Mr Meyers did not lack capacity under the Mental Capacity Act 2005 but that he was a vulnerable adult within the scope of the jurisdiction. In the face of evidence that his life would be at risk if he continued to share his home with his son KF—whose conduct prevented care from being delivered to him—the court ruled that orders should be made that prevented Mr Meyers from living with KF and restricting KF’s contact with him.
The effect in practical terms was that Mr Meyers would be compelled, contrary to his wishes, to evict his son from the home or would be unable to go home at all. The outcome prompts one to question whether orders might have been directed to KF instead (a potential alternative course that was raised in argument). Either way, such orders may fairly be described as significant interferences with his rights under Article 8 of the European Convention on Human Rights (ECHR) to respect for home and private life. However, the court took the view that this degree of interference was necessary and proportionate given the risks to Mr Meyers. It is to be noted that orders merely restraining obstructive behaviour by KF had been made at an earlier stage but had not secured co-operation.
The decision also deals with whether the orders would mean Mr Meyers would be deprived of his liberty, engaging Article 5 ECHR. The court held that Mr Meyers did not suffer from a mental disorder or unsoundness of mind within Article 5 ECHR. Therefore, any orders that deprived Mr Meyers of his liberty would not be permitted under Article 5 ECHR. Both parties argued that the orders, given their practical effect of determining where Mr Meyers could reside, with the potential effect that he would be confined to the care home, amounted to a deprivation of liberty within Article 5 ECHR. However, the court, with reference to European jurisprudence and the decision in P v Cheshire West [2014] UKSC 19, [2014] All ER (D) 185 (Mar) preferred the narrower view that the orders would restrict Mr Meyers’ choices but not his liberty.
A full summary of the principles in relation to the jurisdiction for the protection of vulnerable adults is set out in paras [28] and [29] of the judgment.
What was the background?
Mr Meyers, aged 97, suffers from blindness and diabetes. In March 2017, the local authority brought the proceedings because of concern that he was being prevented from receiving care services due to the behaviour of his son, KF. Moor J granted injunctions restraining KF from behaving in an aggressive and intimidating way towards health, social care or housing professionals and from interfering with repairs. In December 2017, a care agency withdrew its services due to the intimidating behaviour of KF and lack of cooperation by Mr Meyers and after that the local authority was unable to secure a contract with another care provider willing to attend the bungalow. It continued to deliver a daily meal to Mr Meyers, and he could make contact via the emergency care line. In June 2018, Moor J granted its application for a declaration that it had done all that was reasonably practical to provide Mr Meyers with care and had discharged all duties owed to him.
Next in the sequence of events, Mr Meyers had a number of hospital admissions and on one day in September 2018 he contacted the local authority care line 15 times, prompting the local authority to visit. It reported that Mr Meyers had no sheets, nor mattress, glass panes had been removed so that Mr Meyers’ room was exposed to the cold, the boiler had been dismantled, there was no cooker, kettle, cups nor fridge and little food. Mr Meyers had a urinary tract infection, was naked from the waist down, surrounded by flies with food, blood and faeces on the floor. He was dehydrated and hallucinating. The local authority officer persuaded Mr Meyers to go to stay in a care home, ‘convinced that if [Mr Meyers] goes home he could or will die’.
On the basis that Mr Meyers lacked mental capacity in his current state, an urgent application was made to court and Francis J made orders restraining Mr Meyers from returning home and requiring him to live in the care home. At a subsequent hearing, Mr Meyers stated that he did not want KF to continue to live with him. He prepared, and the local authority served, a notice on KF terminating his licence to reside at his property. However, KF remained at the property.
The case returned to court before Hayden J on 10 December 2018 in the urgent applications list. By now Mr Meyers wanted to return to the bungalow to resume living with KF. The expert evidence was that Mr Meyers had capacity to make the decision. However, Hayden J continued the interim orders preventing Mr Meyers from residing at the bungalow and requiring him to live at the care home, under the inherent jurisdiction for the protection of vulnerable adults, until a full hearing on the return date.
The local authority sought permission to appeal those interim orders. Mr Meyers, now with the benefit of legal representation, supported that application. On 21 December 2018, 2018 Baker LJ dismissed the application, in A Local Authority v BF [2018] EWCA Civ 2962.
At the return date on 20 February 2019, Hayden J heard full argument. Mr Meyers attended and told the court that he had promised his late wife that he would look after KF, wished to honour his commitment and the decision to go home was his. He missed his other children who ceased contact due to KF’s presence. KF used illicit drugs and, on occasion, he was afraid of him and locked himself in his room to avoid him. KF had poured a bucket of water on him and deliberately broken his bed. However, Mr Meyers said he was prepared to take the risk of resuming living with KF.
What did the court decide?
Hayden J held that Mr Meyers was a vulnerable adult within the description in SA (vulnerable adult with capacity: marriage), Re [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, triggering the court’s inherent jurisdiction for the protection of vulnerable adults. He held that the essence of the vulnerability arose from the dysfunctional relationship between father and son and that KF exerted an influence over his father which disabled him from making a truly informed decision. He held that if Mr Meyers returned to the bungalow while his son was there and in the absence of a package of care his life would be put in jeopardy.
He held that orders should be made under the inherent jurisdiction so that Mr Meyers would be prevented from living with his son, either in the bungalow or in alternative accommodation and to restrict his contact with his son.
He refused the declaration sought by the local authority that it had discharged its responsibilities to Mr Meyers. He held that the local authority must now investigate whether KF could be removed from the bungalow by court order so that Mr Meyers may return with a suitable package of care (although it is difficult to see that the court could have expected it to achieve this unless Mr Meyers himself was willing to pursue his son’s eviction). He held the local authority should actively promote the reunification of the family to support the care arrangements, to help unlock the unhealthy interdependency between Mr Meyers and his son.
Bethan Harris was called to the Bar in 1990 and practises in the Court of Protection, community care and social housing law. She has appeared in a number of reported cases in these areas and frequently speaks at seminars and writes on recent legal developments.
