Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312 (here)
The Court of Appeal has helpfully clarified the legal test to be applied in the Court of Protection (‘CoP’) when considering an application for an injunction.
The Background
G, a 27-year-old woman who suffers with serious progressive disabilities had, since the age of 13, been an inpatient in a paediatric hospital operated by the NHS Trust. In December 2021, Hayden J found that it was “irreconcilable with her dignity” for G to remain in a paediatric ward and so declared that it was in her best interests to be discharged to a specialist care home (see judgment here). Her parents and grandmother, who wanted G to live at the family home, opposed G moving to the care home.
The Trust and CCG[1] believed that the parents and grandmother were making determined efforts to frustrate G’s transfer and so applied for an injunctive order binding them to the terms of a behavioural framework. When the matter came before Hayden J he granted injunctive relief in respect of all three adults.
The parents and grandmother appealed that order arguing, amongst other grounds, that the Vice-President had been wrong to adopt and apply the test of “necessary and expedient”, found within s.16(5) Mental Capacity Act 2005, as the basis for granting the injunctions.
The Appeal
It was not in dispute that the Court of Protection had the power to grant injunctive relief: s.47(1) MCA 2005, gives the CoP in connection with its jurisdiction the same powers as the High Court. Under s.37(1) Senior Courts Act 1981, the High Court may grant an injunction “in all cases in which it appears to the Court to be just and convenient to do so”. Therefore, argued the appellants “just and convenient” was the correct legal test to apply.
The Court of Appeal considered s.16(5) MCA 2005, noting the CoP’s power to “make such further orders … as it thinks necessary or expedient” for giving effect to its best interests determinations, extends to the grant of injunctive relief. However, the Court did not consider that s.16(5) confers a separate and free-standing power, rather, when the Court is granting an injunction under s.16(5), it is exercising its power pursuant to s.47(1). As such, the test for the grant of an injunction includes the requirement that it is just and convenient to do so [§49]:
“In our judgment therefore although the Court can indeed grant injunctions for the purposes specified in s.16(5) of the 2005 Act, when it does so it is exercising its ordinary injunctive powers which it has by virtue of s.47. As such the test for the grant of such an injunction includes the requirement in s.37(1) of the 1981 Act that it be just and convenient”
The Court went on to consider precisely what is required to meet the “just and convenient” test, finding that there were two requirements:
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that the person protected by the injunction has an interest that merits protection; and
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that there is a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something.
Whilst “necessary and expedient” may have been the wrong formulation of that test Hayden J had nevertheless got the right answer – as his Lordship’s decision to grant injunctive relief had fulfilled both stages of the “just and convenient” test above. The Court considered that this was likely to be the case
“wherever [as in G’s case] an injunction is granted to prevent the Court’s decision under s.16(2)(a) from being frustrated or undermined.”
The Court of Appeal dismissed the appeals brought by the mother and father, on all grounds. In respect of the grandmother’s appeal, the Court determined that she had not been given proper notice of the case against her. Whilst making no comment as to the merits of the substantive case against the grandmother, the Court allowed her appeal and remitted the matter for re-hearing the question of whether a final injunction should be granted against her.
Michael Mylonas KC and Olivia Kirkbride were instructed by Hill Dickinson on behalf of the NHS Trust and ICB. Sophia Roper KC and Benjamin Harrison appeared on behalf of G, instructed by her litigation friend, the Official Solicitor.
[1] now the ICB