I have to confess that having dealt with CoP proceedings for a number of years, I had always proceeded on the basis of my own understanding that the court does have power to grant injunctions in its own proceedings.
If there was any doubt about that, this has now been dispelled by Mr Justice Keehan in his judgment in the case of SF (Injunctive relief).
The unequivocal answer is yes. The CoP does have power to grant injunctions in its own proceedings as stated in the judgment:
“31. The fact that Hayden J., now Vice – President of the Court of Protection, and a judge with the huge experience of Cobb J. take the view that the Court of Protection does have the power to grant injunctions to support and ensure compliance with its best interests decisions and its orders is very persuasive.
32. Having had the benefit of counsel’s submissions and the time to reflect on the authorities cited to me, I am now persuaded that the Court of Protection does indeed have power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.”
In his 15 page judgment, Mr Justice Keehan clearly and succinctly sets out the law and his discussions and confirms at paragraph 33 why he arrives at his decision as follows:
- Section 47 (1) of the Mental Capacity Act 2025 (MCA) is drafted in wide and unambiguous terms.
- It must follow that the CoP has the power which may be exercised by the High Court pursuant to section 37 of the Senior Court Act 1981.
- He states that his conclusion is fortified by the terms of section 17(1)(c) of the MCA which permits the court to prohibit contact between a named person and P.
- He states that he is further fortified in his view by the provisions of sections 16(2)(5) of the MCA which are drafted in wide terms and enable the court to “…make such further orders or give such directions … as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…made by it under subsection (2)”.
- The CoP Rules 2017, Rule 21 and Practice Direction 21A, make provision for the enforcement of orders made by CoP including committal to prison for proven breaches of court orders.
In addition, it is perhaps significant to note that Rule 21.9 sets out the requirement for a Penal Notice to be attached to judgments and orders and states as follows:
“ 1. A judgment or order which restrains a party from doing an act or requires an act to be done must, if disobedience is to be dealt with by proceedings for contempt of court, have a penal notice endorsed on it …”
In my view, that Practice Direction must have been written in contemplation of the CoP having an existing jurisdiction to grant injunctive relief in proceedings.
What was the issue in SF?
SF was a young lady of 20 who had autism and learning disabilities and lived in a supported living placement.
In September 2019, her care and support provider became aware that she was communicating with a number of men via social media and the internet and that some of these men were visiting the placement and having sexual relations with her.
Only one of these men, at the time of the proceedings had been identified – and he was joined as party to the proceedings, referred to as “VK”. He was joined for determination of the limited issue of his continued contact with SF and his sexual relations with her.
The local authority applied for an injunction against VK to prohibit him from attending SF’s accommodation. In the context of this application, the question of whether the court had the power to grant the required injunction against VK in SF’s best interests was raised.
It is perhaps trite to say that the court accepted that SF lacked specific capacity in a number of areas and that it had jurisdiction to make best interest decisions on her behalf. Although strangely, the judgment makes no reference to SF lacking capacity to make decisions about the contact she has with others, including capacity to consent to sexual relations.
The judgment does refer to previous cases where the CoP granted injunctive relief to protect vulnerable incapacitous adults from harm and sexual exploitation by others (paragraphs 25-29). You will note that those previous cases were presided over by Mr Justices Hayden and Cobb.
The healthcare team is extensively involved in CoP proceedings principally acting on behalf of NHS commissioners and providers – don’t hesitate to get in touch if we can be of any help or assistance.
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