Court Of Protection’s Power To Impose Custodial Sentences

Although the Court of Protection’s primary purpose is to make decisions on behalf of people who lack the capacity (known as “protected parties”) to make decisions for themselves, it does have certain powers that can be invoked in more extreme circumstances. A specific power the Court has is to commit an individual to prison for multiple breaches of Court orders, and this is also an order that another party may apply for if a case is being held up by another party defaulting repeatedly.

An example of this features in AB v HB & Another [2021] EWCOP 45.

AB v HB & Another [2021] EWCOP 45

Case summary

The applicant in this matter had concerns over the welfare of his 96-year-old father (P) who in his view lacked capacity. However, to start proceedings in the Court of Protection it is usually necessary to produce evidence that the protected party in question lacks the capacity to make decisions for himself/herself. The applicant could not do this because one of the respondents, his brother, was refusing to comply with requests to allow P’s capacity to be assessed.

The applicant applied for and obtained an order that a capacity expert would be permitted to assess P’s capacity but the applicant’s brother repeatedly interfered with the expert’s attempts to assess P. He refused to allow access to P’s property, sought to cancel appointments and neither he nor P were present on one occasion that the expert attended. All in all, there were seven individual breaches of the Court’s order that he would allow the assessment to take place.

The applicant applied for an order to commit his brother to prison for contempt of Court, and this was heard very recently but, crucially, after the brother had finally allowed the capacity assessment to take place. The matter was heard by Her Honour Judge Hilder, who clearly established that the burden of proof was on the applicant – he would have to demonstrate that his brother had breached the Court order and that he would continue to do so were it not for the committal.

The capacity expert had submitted an affidavit that detailed the many occasions on which the brother had frustrated his attempts to carry out the assessment. The brother admitted having done so, and in his defence, he had argued that he did not appreciate the seriousness of it, and believed the matter was between the applicant and P and had nothing to do with him. This argument was rather weak as P was living with him and under his care, and he was required to facilitate access for the capacity expert.

The Judge reminded the brother that he was in contempt of Court by refusing to cooperate with the terms of the order, a very serious matter indeed. However, since by the time the application was heard, he had cooperated, the Judge did not commit the brother to prison. This case however does serve as a reminder that the refusal to cooperate with Court orders in the Court of Protection can lead to a prison sentence. This is also an order that a party may seek against another if there are multiple examples of this designed to frustrate the progress of a case.