Sometimes our courts will step in to address a gap in legislation using various time honoured principles such as “inherent jurisdiction” or parens patriae jurisdiction. This blog addresses the latter by reason of it being dealt with in a recent decision in the context of a request for a court ordered mental capacity examination.
Black’s Law Dictionary defines parens patriae jurisdiction as “the state in its capacity as provider of protection to those unable to care for themselves.” It is exercised by the courts, not the legislative or executive branches of the state. However, it is capable of being exercised only when the governing legislation does not “occupy the field”. In other words, when the legislation does not provide for the circumstances in question, the court can exercise its parens patriae jurisdiction, if necessary, for the protection of an individual.