Care Providers and Commissioners will understandably be reluctant to heap a court process on carers or family where there is a dispute about the care package for an incapable service user. But sometimes, despite best efforts, negotiation or working-together agreements do not work, and if the service user is being affected as a result, the care provider or commissioner may have no option but to use the Court to prevent harm.
In the recent case of Re G (Court of Protection: Injunction) , the Court of Appeal set out the legal test to be applied when considering an application for an injunction in the Court of Protection. In this particular matter the Court upheld an injunction prohibiting family members of G from behaving in a hostile and intimidating way towards professional staff, where this behaviour was likely to impede the residential placement that the Court had decided was in G’s best interests.
G suffers from a serious degenerative neurological condition. She was admitted to a paediatric hospital at age 13 where she remained until she turned 18, when a dispute emerged regarding where she should reside as an adult. G’s family wanted her to return either to the family home or to her own property nearby with a package of care, whilst the Trust and the (then) CCG’s position was that G required an intermediate residential placement to bridge the move between hospital and community care.
There was no dispute that G lacked capacity to make decisions about her care, residence and treatment.
In December 2021, Mr Hayden J made the decision that it was in G’s best interests to move to a bridging residential placement. However, it became difficult for the Trust and CCG to facilitate this due to the conduct of G’s father, mother and paternal grandmother.
Application for Injunction
In April 2022, the Trust and the CCG successfully applied to the Court of Protection for an injunction against the three members of G’s family. The application was supported by written evidence of G’s father behaving in ways that were hostile and intimidating towards staff and this behaviour being supported by G’s mother and grandmother.
The injunction granted included obligations on conduct such as requiring the family members to treat hospital and care home staff with courtesy and respect. It also included prohibitions against these family members from saying anything or behaving in a way that was challenging or threatening towards professional staff.
The decision was appealed by all three family members for various reasons including that the Judge had erred in the law.
Court of Appeal
Earlier this month, the Court of Appeal broadly dismissed the appeal and upheld the injunction. The Court of Appeal confirmed that the correct test to consider was whether the injunction was ‘just and convenient’. The Court set out that this is a two stage test that requires the person being protected by the injunction to have an interest that merits protecting and that the Court has the power to make an injunction. The Court of Appeal found that G’s interest that required protecting derived from ensuring that the best interests decision that the Court had made regarding her move to the residential placement was given effect to. The Court derived the power to make the injunction from Section 16(5) of the Mental Capacity Act 2005 which permits the Court to make orders to give effect to best interests decisions it makes under Section 16(2)(a).
This case is a really interesting development in the Court of Protection as it confirms that, if there is a risk that a best interests decision made by the Court may be obstructed or frustrated by the behaviour or actions of any particular person, the Court could be asked and would have the power to make an injunction to protect the best interests decision. This injunction could be prohibiting a person to behave or act in a certain way or requiring them to do something to ensure the best interests decision is given effect to.
However, it is important to note that the application for an injunction would need to be based on sufficient evidence and also to remember that the Court’s power to make injunctions is a discretionary power and the Court will take into account all of the circumstances which may require them to balance the rights of the service user against the rights of others.
At Bevan Brittan LLP, we are frequently instructed by Commissioners and Providers to make applications to the Court of Protection for best interests decisions regarding a person’s welfare. If you would like further information regarding this, please contact Simon Lindsay or Ruth Atkinson-Wilks.