Legal update: courts confirm councils’ power to protect vulnerable adults

Ed Mitchell on a case that confirmed local authorities’ power to intervene in order to protect vulnerable adults

Why does the PS v the City of Sunderland case matter?

No vulnerable adult should have to put up with a dangerous carer. However, many often do. Sometimes this is because local authorities are uncertain about what, if any, direct action they can take to protect vulnerable adults. This can have terrible consequences. This decision is important because it shows that there is something that local authorities can do.

What are the key practice implications?

The High Court confirmed that local authorities can forcefully intervene to protect vulnerable adults. Some have suggested that, pending new legislation, what is referred to as the Bournewood gap prevents this. This case shows that view to be incorrect. The High Court, under its “inherent jurisdiction”, can authorise a local authority to remove a vulnerable adult from abusive carers. The court can also allow an authority to prevent a vulnerable adult leaving, or being removed from, a care setting.

How did the case arise?

PS, an 82-year-old woman with dementia, was a hospital in-patient. By February 2007, she was fit for discharge. Her local authority, Sunderland, thought that she should be discharged to a specialist care home. Her daughter, however, objected. She wanted her mother to live with her. Sunderland was of the opinion that this would put PS at serious risk.

Sunderland decided they had to act when they learned of the daughter’s secret plans to remove her mother from hospital. It made an emergency application to the High Court seeking authority to prevent PS leaving, or being removed from, hospital and from the care home once she had been discharged from hospital.

What did the court decide?

The High Court held that PS fell within its inherent jurisdiction because she was mentally incapable of making decisions about where she should live. The court went on to conclude that it was in her best interests for her to live in the care home chosen by Sunderland. As a result, it declared that it would be lawful for Sunderland’s officers to prevent PS leaving, or being removed from, the hospital or the home.

Sunderland was concerned that if they tried to prevent PS’s departure from the hospital or care home they would fall foul of the well-known Bournewood ruling. In Bournewood, the European Court of Human Rights held that detention of mentally incapable adults without court oversight is a breach of human rights.

The court in this case held that the Bournewood ruling did not prevent it authorising Sunderland to prevent PS from leaving the care home. This was because Bournewood was concerned with detention without attendant court oversight but, here, that oversight was provided by the High Court. In other words, the court closed the Bournewood gap.

The full decision

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

Previous legal update pieces by Ed Mitchell

This article appeared in the 25 October issue under the headline “How the High Court closed the Bournewood gap”

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