A NHS Foundation Trust v G [2022] EWCOP 25

Injunctions G, now 27 years old, had been in a children's hospital since the age of 13. A previous judgment had decided that she should be transferred to a care home prior to any return home, but her father had sabotaged that placement. The Trust sought injunctive relief against G's father, mother and grandmother, in order to put in place clear boundaries to manage their behaviour. The family argued unsuccessfully that the s16(5) MCA 2005 power to make further "necessary or expedient" orders applied only in the context of the appointment of deputies, that s47(1) MCA 2005 (and therefore s37(1) Supreme Court Act 1981) is not apt to cover restricting behaviours in the context of either a hospital or care home, and that little or no weight should be afforded to the hearsay evidence of anonymous nurses about the father's behaviour. The court granted the relief sought.

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Year:2022; Vol: ; Series: WLR (D); PageNumber: 307; Part:

Court of Protection

An NHS Foundation Trust v G and others

[2022] EWCOP 25B

2022 June 8, 9, 10, 13; 23

Hayden J

Court of Protection— Jurisdiction— Injunctive relief— Father of vulnerable adult deliberately sabotaging agreed care plan— Treating NHS trust applying for injunction against father and other family members— Whether Court of Protection having jurisdiction to grant injunction in general proceedings— Whether injunction to be granted— Mental Capacity Act 2005 (c 9), ss 16(5), 47(1)

The Court of Protection determined that it was in the best interests of a vulnerable adult to be transferred from her placement in a children’s hospital to a specialist care home as a step-down measure forming part of an overall care plan moving her to her parents’ care. The father maintained his disagreement to many of the court’s conclusions and, supported by the mother and the paternal grandmother, his subsequent behaviour towards the treating clinicians and medical professionals amounted to a deliberate attempt to sabotage the placement and prevent it from going ahead. The trust sough injunctive relief under section 16(5) of the Mental Capacity Act 2005 against each of the family members. The father challenged the jurisdictional basis of the application, contending that 16(5) of the 2005 Act had been erroneously applied in previous cases and, properly construed, only gave the court the power to make orders it deemed “necessary or expedient” in the context of the appointment of deputies.

On the NHS Trust’s application for injunctive relief—

Held, injunctions granted. Section 16(5) of the Mental Capacity Act 2005 expressed two clear and distinct objectives in its heading (powers to make decisions and appoint deputies), in light of which it would be entirely illogical to confer wider powers to facilitate the enforcement of orders in the context of the appointment of deputies and not upon the court more generally. The grammatical structure of section 16(5) confirmed that the court’s jurisdiction to “confer on a deputy such powers” complemented the powers given to the court generally. It followed that the power in section 16(5) to make such orders as the court deemed necessary or expedient was not confined to the context of the appointment of deputies. Sections 16 and 17 of the 2005 Act provided an entirely cogent framework for the granting of injunctive relief to give effect to the court’s orders or directions where it found it necessary or expedient to do so. In the present case, where the totality of the evidence in the present case established a compelling basis for the injunctive relief sought in respect of the father, and further supported the conclusion that the relief sought in respect of the mother and paternal grandmother was entirely necessary, an injunction would be granted accordingly. The scope and ambit of the relief was to put in place clear boundaries to manage the family’s behaviour (paras 8, 9, 46, 50).

Per curiam. Although not strictly necessary to decide for present purposes, the court also regards as misconceived and unsustainable the father’s further submissions (i) that section 47(1) of the Mental Capacity Act 2005 is not apt to cover restricting behaviours in the context of either a hospital or care home on the basis that those are a matter between the family members and the staff employers, and (ii) that the test for an injunction in the Court of Protection requires the court to be satisfied that the injunction is “just and convenient” and not “necessary or expedient”, requiring the court’s discretion to be exercised in accordance with legal principle and identifying the legal right that is sought to be protected. The established authorities make clear that the power to grant an injunction extends both to legal and equitable rights (paras 10, 14, 15).

Hollyoake v Candy [2016] EWHC 97 (Ch)Not on Bailii! applied. Debra Powell QC (instructed by Hill Dickinson LLP, Liverpool) for the NHS trust and the clinical commissioning group.

Sophia Roper QC (instructed by Official Solicitor) for the vulnerable adult, by her litigation friend.

John McKendrick QC (instructed by Irwin Mitchell LLP, Sheffield) for the father.

Nicola Kohn (instructed by Simpson Millar LLP, Leeds) for the mother.

The paternal grandmother in person.

Thomas Barnes, Solicitor

Referenced Legislation

Mental Capacity Act 2005 (c 9), ss 16(5), 47(1)

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Other capacity cases🔍

Date: 23/6/22🔍

Court: Court of Protection🔍

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Published: 25/6/22 21:52

Cached: 2024-04-19 19:08:10

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