Injunctive relief in the Court of Protection

The Court of Appeal has ruled that it was “just and convenient” to grant injunctive relief in Court of Protection proceedings involving a young woman with complex health and care needs. This helpful decision clarifies the legal test to be applied by the Court of Protection when considering an application for an injunction.

In proceedings under the Mental Capacity Act 2005 concerning a 27-year-old woman, G, the court made an injunctive order against three members of her family – her mother, her father and grandmother. Each of those three individuals filed a notice of appeal against the injunction and permission to appeal was granted in July 2022. G suffers from a serious degenerative neurological condition and had spent much of her early life in a paediatric hospital but at a best interests hearing, the court decided that G should be discharged to a specialist care home. G’s family opposed her moving to a care home setting preferring that she moved to the family home.

The NHS Trust and the CCG (now Integrated Care Board) were concerned that G’s family were fettering efforts to implement the transfer to a new placement, an outcome which would be “devastating” for G, and so applied for an injunctive order. The Court of Appeal analysed what the “just and convenient” test for making an injunction under section 37 of the Senior Courts Act 1981, finding that "the High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the Court to be just and convenient to do so."

It set out the two requirements:

  • "an interest of the claimant which merits protection" and
  • "a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something"

The appeal judges decided that the court had satisfied the requirements and that G had an interest that merited protection and that there was a legal or equitable principle that justified an injunction. The court therefore dismissed the appeals by the parents. The appeal by the grandmother was allowed as she had not been properly been served and so was remitted the matter for re-hearing.

This decision will be welcome news for commissioners and providers involved in complex care packages. If you’d like to discuss any of the issues raised here or require support do contact us.

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