When Can The Court Of Protection Make Injunctions?

The Court of Protection is a specialist Court that operates only when the person at the centre of the proceedings (protected party) lacks the capacity to make certain decisions for themselves.

The Court of Protection’s powers is confined to making decisions that are deemed to be in the protected party’s best interests, according to the best interests criteria. In Court of Protection proceedings, the Court has wide-ranging powers and may order third parties (and parties to the proceedings themselves) to do things if it is considered to be beneficial to the protected party or helpful to the Court in resolving a live issue.

However, in more serious cases, the Court of Protection has the power to grant injunctions.

What is an injunction?

Injunctions are serious remedies that are usually only granted by the High Court of Justice. An injunction is an order which either:

Injunctions are serious remedies and to disobey the terms of one amounts to contempt of Court, which is a criminal offence and can carry a penalty of imprisonment. Some injunctions are even accompanied by a penal notice – which is a Court order stipulating that in the event of failure to comply, the person(s) served with the order may be committed to prison.

In what circumstances can the Court of Protection make injunctions?

The Court of Protection is able – pursuant to section 47(1) of the Mental Capacity Act 2005 – to invoke the “inherent jurisdiction” of the High Court, meaning that some of the High Court’s powers may be used in certain circumstances. Examples of this include:

• Injunctions preventing an abusive relative from visiting the protected party (as was the case in SF (Injunctive Relief) [2020] EWCOP 19); or
• In property and finance cases, freezing injunctions, if the protected party appears to have been the victim of fraud.

Fraud is sadly not uncommon in cases involving protected parties. The inability of the protected party to manage their own property and affairs renders him/her vulnerable to an abuse of power by attorneys or deputies. Given the wide-ranging nature of the Court of Protection’s powers, it follows that it can invoke the High Court’s inherent jurisdiction to make a freezing injunction against an individual or individuals in exceptional cases. It is possible of course to bring proceedings in the High Court directly, although as the proceedings will be on the protected party’s behalf, someone must be prepared to act as litigation friend for the protected party, and must give the undertaking to meet any damages claimed by the defendant as a result of the freezing order.

The Court of Protection can hear such applications on an emergency basis, and it will be necessary to quickly obtain a capacity assessment, which can be conducted quickly by a number of private providers (although in some more complex cases, a psychiatrist is often the best option).