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Decision making, mental capacity and undue influence: do hard cases make bad – or least fuzzy-edged law?

Date:25 NOV 2020
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David Lock QC, Landmark Chambers

This article asks the question – should the inherent jurisdiction of the High Court be used to place restrictions on the life choices of individuals with capacity on the grounds that the individual is 'vulnerable'. It challenges the legitimacy of the extension of the parens patriae jurisdiction from children and those without capacity into making orders affecting the life choices of adults who have capacity but nonetheless have a degree of vulnerability. It explains how the caselaw from which this supposed jurisdiction is derived does not support any proper ground for the court intervening in the lives of individuals with capacity unless there is a proven or threatened legal wrong committed against that individual. It argues that the existing approach under which a wider jurisdiction is exercised by the Family Division may be in breach of article 8 of the ECHR. It thus cautions practitioners to be wary of seeing the inherent jurisdiction as having unrestrained powers to intervene in the lives of vulnerable individuals with capacity. The article is adapted from a speech given by Professor Lock QC to the Court of Protection Bar Association Conference in 2019.

The full article will be published in the December issue of Family Law

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