The Court Of Protection’s Power To Impose Injunctions Against Individuals

Injunctions are powerful Court orders which carry criminal sanctions if they are breached. An individual who breaches an injunction can expect to be imprisoned or receive a large fine, depending on the severity of the matter.

Ordinarily when an individual seeks an injunction against another individual, they must bring proceedings in the High Court of Justice. However when the injured party is a protected party (i.e. someone who lacks capacity), quite often the claim can be brought in the Court of Protection and the same remedy obtained.

Injunctions in the Court of Protection

Section 47(1) of the Mental Capacity Act 2005 provides as follows:

“The Court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”.

The key words here are ‘in connection with its jurisdiction‘. The Court of Protection has jurisdiction over matters concerning the health and welfare of a protected party and the management of that person’s property and finances.

It is important to remember that the Court of Protection is not a specialist Court in matters such as – for example – intellectual property, or chancery business. If you are seeking a remedy on behalf of a protected party in such a matter, the Court of Protection will often be the first port of call to gain permission to bring proceedings in a specialist Court, but will not be able to hear the case in full.

Nevertheless, specialist areas apart, the question of what it is that can affect a protected party’s health and welfare can mean a multitude of things. It was put to the test very recently in SF (Injunctive Relief) [2020] EWCOP 19.

SF (Injunctive Relief) [2020] EWCOP 19

This case concerned an individual who was living in a supported living facility with 24 hour care. She had autism and lacked the capacity to make decisions about using the internet safely. She had been accessing various chatrooms and dating sites and was inundated with contact from men frequenting the sites. One in particular was visiting the protected party and having intimate relations with her and the Local Authority applied for an injunction to prevent this from occurring as it presented a significant risk to the protected party’s safety.

The Local Authority in this instance were put through their paces by the Official Solicitor, acting on behalf of the protected party, on the basis that the Court had no power to make an injunction in these circumstances. However, the Honourable Mr Justice Keehan decided that the Court did have that power. Aside from the Mental Capacity Act providing that the Court of Protection could impose High Court remedies, the Court of Protection Rules 2017 enables Judges to make injunctions against third parties. The Court therefore ordered that the individual who was accessing the protected party’s home was not allowed to do so any longer and any breach of that order by him would have led to criminal sanctions being imposed for contempt of Court.

In this particular case, the Local Authority made the application pursuant to its designated role to look after vulnerable people living within the region. But in theory a deputy, attorney or even potentially a relative or close friend could seek a Court injunction against one or more individuals if there was any concern that they were poising a risk to a protected party’s safety, health or finances. This is particularly important in cases where vulnerable adults are being taken advantage of, which happens alarmingly often particularly when a protected party’s close relatives do not live close by.