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Does the Court of Protection have the power to grant injunctions?

Our People - Olivia Allen
24 March, 2023

Yes, the Court of Protection in the UK has the power to grant injunctions. The court has the power to make orders and injunctions to protect vulnerable adults who lack capacity to make decisions for themselves, particularly in relation to their health, welfare, and financial affairs. But what is an injunction, and how does it relate to the Court of Protection?

What is an injunction?

An injunction is a civil (as opposed to a criminal) remedy where the court can order one or more people to carry out or stop doing a specific act. For example, the injunction could be made to prevent loss of an asset, personal harm, damage to reputation, or to protect business or personal interests. 

What is the Court of Protection?

The Court of Protection is a specialist court in England and Wales which deals with questions relating to a person who does not have capacity to make decisions about certain areas of their life (for example, a person who for illness or other reason may not be able to make a decision about where they should live, or what kind of care they should receive).

The Court of Protection must always make decisions that are in the best interests of the person who lacks capacity and this goes for any decision to grant an injunction as well.

In what circumstances can the Court of Protection make injunctions?

The Court of Protection has the power to grant injunctions under s. 16(5) of the Mental Capacity Act 2005, but they can only be granted when it is ‘just and convenient’ to do so. The case of Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, recently confirmed the legal test for making an application for an injunction in the Court of Protection. 

In this case the Court granted an injunction to stop family members of ‘G’ from behaving in a hostile and intimidating way towards staff if their behaviour would prevent the staff from delivering care for G in the residential placement that the Court had decided was in G’s best interests to stay in.

Background

In this case, G was a 27-year-old woman who suffered from a serious degenerative neurological condition, and had spent much of her adult life living in children’s hospitals. G was considered to lack capacity to make decisions about her care, residence and treatment, and there was no dispute about this. 

The case was before the Court of Protection as there was a dispute about where G should reside as an adult. G’s family wanted her to return to the family home or to her own property nearby with a package of care, whilst the relevant NHS Trust and Clinical Commissioning Group (CCG) thought that G should first stay in a residential placement to assist her transition from hospital to living in the community.

In December 2021, the judge in the case (Mr Justice Hayden) decided it was in G’s best interests to move to a ‘bridging’ residential placement. However, the conduct of G’s father, mother and paternal grandmother made it very difficult for this to go ahead. Their conduct included hostile and intimidating behaviour towards staff.

Therefore in April 2022, the Trust and CCG applied to the Court of Protection for an injunction against these three members of G’s family. Whilst the injunction was originally granted, the family members appealed the decision stating that the Judge had made an error in the law by granting the injunction.

Court of Appeal

The case then went to the Court of Appeal who dismissed the appeal and upheld the injunction, confirming that the correct test to consider was whether the injunction was ‘just and convenient’. 

The Court further confirmed that there was a two-stage test to apply:

  1. The person to be protected (in this case ‘G’) must have an interest that merits protection; and,
  2. The court must have the power to grant the injunction.

The interest of G’s that needed to be protected was the decision made by Hayden J that it was in her best interests to move to the residential placement to receive care and treatment. As we have seen above, the Court of Protection does have the general power to grant injunctions, in Section 16(5) of the Mental Capacity Act 2005.

Essentially, the behaviour of G’s family members risked obstructing or undermining the efforts of residential staff from providing G’s care, and this would in turn frustrate the best interests decision made by the judge for her to move there to receive care. The Court was therefore able to grant an injunction that would protect the best interests decision. 

The application for the injunction had been based on strong evidence that G’s family members both had and were therefore likely to obstruct the care given. As such this case clearly suggests the need for strong evidence to support any application for an injunction.

This case also highlighted the fact that any decision regarding the granting or not of an injunction must weigh up the rights of the incapacitous adult with the rights of others who may be heavily infringed by the injunction. 

If you have any questions in relation to the Court of Protection having the power to grant injunctions, please do not hesitate to contact a member of our Court of Protection team or get in touch on 020 8492 2290.

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