The High Court gave a council the right to remove a vulnerable adult from her carers but such litigation is costly, writes Ed Mitchell
The case: Ealing LBC v KS
The issue: Whether the family of a vulnerable adult would be allowed to look after her.
For years, there was legal confusion over whether local authorities could remove vulnerable adults from unsafe carers. This lifted when the High Court held that its “inherent jurisdiction” permitted it to authorise local authority intervention.
This case illustrates how vulnerable adult litigation can be similar to care proceedings under the Children Act. Intensive scrutiny was given to the local authority’s care plan alongside an awareness of the need to promote contact between adult and family. Whether other adults’ services teams have the resources to cope with litigation of this sort, however, is another matter.
Why was K vulnerable?
The 34-year-old woman, K, was vulnerable due to a combination of personal and family factors.
K had learning disabilities and a serious mental illness. In addition, she had a strong sex drive and so was vulnerable to sexual exploitation. K’s family, a 75-year-old mother and three adult sisters, were dysfunctional. There was a history of family feuding in which K had been used as a pawn. This was illustrated by the number of allegations and counter-allegations made by family members against each other. These ranged from forcing K to marry, theft of her disability benefits and assault.
What were the concerns about K’s welfare?
Ealing LBC, K’s local authority, thought that she should live in a specialist residential facility. Family care would, Ealing argued, place K at too great a risk of sexual exploitation and emotional harm. The family disagreed. Ealing applied to the High Court for a declaration that it would be lawful for them to enforce their proposal for a residential placement.
What did the court decide?
The court granted Ealing its declaration. Ealing had shown that public care would be of a better quality than family care, that intervention was necessary to protect K from abuse and that she did not have the mental capacity to decide for herself where to live. But the court did emphasise that arrangements must be put in place for contact between K and her family although, initially, this would be supervised.
Can adults’ services cope with litigation of this intensity?
The High Court gave intensive scrutiny to Ealing’s future care proposals. This, of course, is right. But there must be concern as to whether local authority adults’ services teams are adequately resourced to cope with litigation of this intensity. Here, the witness statements alone ran to 500 pages, there were eight lever arch files of associated documentation and four barristers appeared before the High Court.
Vulnerable adult protective litigation is a relatively new legal area and many teams will not have the budgets in place to run a case such as this. Difficult financial choices will arise and it is to be hoped that, overall, a means can be found of taking necessary protective legal action without having to cut frontline services.
The solution may lie in the new Court of Protection established under the Mental Capacity Act 2005. Future cases of this sort are likely to be heard by that court whose specialism and relative informality may make vulnerable adult cases easier to manage.