Court of Protection and Injunctive Relief – Revisited

Do the powers of the Court of Protection extend to granting injunctive relief restraining non-subject individuals from acting in a manner which may cause harm to the vulnerable person with whom the court is concerned? That was the question that had to be answered by Keehan J. in the recent case of A Local Authority v SF (Injunctive Relief) [2020] EWCOP 19. 

After surveying the provisions of the Mental Capacity Act 2005, and the developing jurisprudence, he concluded that it does. 

The case concerned SF, who was vulnerable to exploitation, including sexual exploitation. The local authority, supported by the Official Solicitor, sought an injunction preventing one named individual from attending SF’s accommodation, to protect her from exploitation. An interim injunction was granted early in the proceedings by Williams J. The matter then came before Keehan J., who questioned the jurisdictional basis of the Court of Protection to grant injunctions, including interim, and subsequently discharged the interim injunction. 

At the final hearing Keehan J. was persuaded that the court did have the power to grant injunctions. 

The court considered, in particular, the terms of sections 15, 16 and 17 of the MCA 2005, and section 47 of the Act entitled ‘General Powers and Effect of Orders etc.”. Section 47(1) provides: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. The High Court emphatically has powers to grant injunctive relief. 

The court considered the developing jurisprudence in respect of injunctive relief being granted by the Court of Protection. In particular: (1) MASM v MMAM (by her litigation friend, the Official Solicitor), MM, London Borough of Hackney & University Hospital NHS Foundation Trust [2015] EWCOP 3 (Hayden J.); (2) Re Leslie Whiting [2013] EWHC B27 (Fam), [2014] C.O.P.L.R. 107; and (3) North Yorkshire County Council v Elliot [2019] EWFC 37. 

In MASM Hayden J. emphasised that the Court of Protection has the same powers of the High Court. In that case, there had been no injunctive relief nor was the contemplation of injunctive relief. The case concerned the possibility of enforcement of a declaration, where a person had acted contrary to intention of the declaration. 

Again, Hayden J. heard the case of Re Whiting. That was an application for committal for contempt of a breach of an injunction made by a district judge in the Court of Protection. The case did not consider, in detail, the basis on which the injunction was granted, although it was clearly under the aegis of the MCA 2005. At the conclusion of the committal proceedings, Hayden J. continued the injunction and therefore implicitly accepted he had such jurisdiction. 

Finally, the Elliot case was also a case for committal for breach of an injunction that had been made by Cobb J. in the Court of Protection, in which he again clearly accepted jurisdiction to grant injunctive relief under the provisions of the MCA 2005. The circumstances of the injunction granted in that case were similar to the present.

Drawing these strings together and having considered the statutory provisions, and the decision of two experienced judges of the High Court who implicitly accepted the jurisdiction, Keehan J. was willing to conclude that the Court of Protection does have jurisdiction to grant injunctions. This is a power which could be granted by the High Court, and had been preserved in the Court of Protection by s.47(1) MCA 2005. His conclusion was fortified by the provisions of s.17(1) MCA 2005 which allowed the court to prohibit contact between a named person and P.