Court Of Appeal Confirms Court Of Protection Have Power To Grant Injunctions

The Court of Protection is concerned with individuals who lack the capacity to make decisions for themselves.

Capacity is assessed in relation to the specific decision in question and a person is deemed to lack capacity when (due to an impairment of the mind or the brain) they are unable to do one or more of the following:

When an individual is proven and found to lack capacity the Court of Protection will be required to make a best interests decision on their behalf. The Mental Capacity Act 2005 (MCA) and in particular section 4 (the best interests criteria) provides a framework within which the Court of Protection has the discretion to make orders that are appropriate for a person who lacks capacity (P).

The Court of Protection’s discretion as to the terms of those orders allows it a wide range of powers and it can include orders against other individuals if it is just, proportionate and the order in question is in the Protected Party’s best interests.

The recent case of Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, heard in the Court of Appeal, involved an appeal against the Court of Protection’s previous decision to grant an injunction against the Protected Party’s parents.

Facts

During the earlier proceedings, the Court of Protection did not grant the family’s wish for the Protected Party to return home to live with them and determined it was in the Protected Party’s best interests to instead be transferred to a residential placement.

The father of the Protected Party then became hostile towards the hospital where the Protected Party was currently placed and he began to actively disrupt the transfer. The applicant NHS Trust in response applied for an injunction against the family to prevent them from taking steps to obstruct things, and sought it on the basis that it was in the best interests of the Protected Party and necessary for the previous order to be given effect. They were successful in obtaining that injunction at first instance.

The family subsequently appealed on the grounds that the Court of Protection had in their view erred in granting the injunction and that it fell outside the Court of Protection’s powers. The Court of Appeal was required to consider the powers available to the Court of Protection in accordance with the MCA and therefore, what tests should be applied.

The Court of Appeal held that the Court of Protection was able to grant injunctions and could invoke the inherent jurisdiction of the High Court of Justice, which would enable it to do so. This could only happen if the Court of Protection was satisfied that it was “just and convenient” to do so, as if it were the High Court granting the injunction.

The Court of Appeal decided that the Court of Protection could grant the injunction legally and that it was in the Protected Party’s best interests. It was also established that there was an equitable principle in making this particular order – the Court had previously ordered that the Protected Party should be moved to a new location and the family’s actions were frustrating that process. Therefore, in this case, it was clear the injunction was necessary in order to give effect to the previous order.

Comment

This case reinforces the fact that the Court of Protection can invoke the powers of the High Court of Justice in certain circumstances, however, it is not necessarily free to grant injunctions in all cases.

There must be a pressing need for the order, and the injunction must also be in the Protected Party’s best interests, just and convenient. It also serves as a warning to relatives who seek to obstruct orders in the Court of Protection. Although the Court of Protection is intended to be as helpful as possible to vulnerable parties, that is not to say it cannot make serious orders against relatives and third parties who frustrate its processes.