Injunctions are a powerful tool within the Court of Protection’s arsenal, used to prevent actions that may jeopardise the well-being of those who are unable to protect themselves due to a lack of mental capacity. However, the use of such injunctions must be carefully balanced against the rights of those subject to the orders. The Court of Protection must navigate these delicate issues, ensuring that the orders it imposes are both necessary and proportionate to the risks involved.
The cases of MK (“P”), In the Matter Of [2024] EWCOP 27 (10 April 2024) and G, Re (Court of Protection: Injunction) [2022] EWCOP 25 provide key insights into how these principles are applied in practice. In MK’s case, the court was tasked with deciding whether to extend an injunction against a family member whose actions were believed to undermine the care of the protected person. Re G focused on the broader principles that should guide the Court of Protection when considering whether to issue or extend injunctions, particularly emphasising the importance of proportionality and the need to regularly review such orders.
This article explores these core principles, offering a structured approach for applicants seeking to apply for injunctions in the Court of Protection.
Core Principles
Proportionality is a central principle in the issuance of injunctions. As emphasised in Re G, the court must ensure that any injunction is no more restrictive than necessary to achieve its protective purpose. Applicants should be prepared to demonstrate that the injunction they seek is essential to prevent significant harm to the protected person, and that less restrictive alternatives have been considered and found insufficient.
Necessity of the injunction must be demonstrated by detailed evidence to support the application.
• For instance, in NHS West Yorkshire ICB v MK, the court determined that an injunction against AK was necessary because of the ongoing risk he posed to MK’s care arrangements. AK’s persistent opposition to MK’s prescribed medication, including attempts to interfere with her treatment, presented a tangible risk to her well-being. The court highlighted how AK’s actions, if unchecked, could disrupt the stable care environment that had been carefully maintained for MK.
• In Re G, the court specifically examined whether less restrictive measures could have been sufficient. The court noted that while injunctions are sometimes the only effective means of protection, it is essential that alternatives, such as voluntary undertakings or structured supervision, are considered first. The judgment in Re G pointed out that in some situations, a simple conversation or agreement might resolve issues without the need for an injunction, thereby avoiding unnecessary restrictions on the respondent’s rights.
• Both cases stress the importance of evaluating the impact of the injunction on the respondent’s rights. In Re G, the court was particularly mindful of how the injunction would affect the respondent’s Article 8 rights (right to respect for private and family life). The court noted that any interference with these rights must be carefully balanced against the need to protect the vulnerable individual. In MK’s case, while AK’s rights were restricted, the court found that this was proportionate to the harm that his continued unsupervised involvement could cause to MK’s care and well-being.
Consultation is a vital part of the process, particularly when determining the protected person’s best interests. The court in Re G emphasised the importance of consulting those who know the protected person best, including family members and professionals, to gather a comprehensive understanding of the individual’s needs and wishes.
• Consulting with P: Even if the person lacks full capacity, efforts should be made to consult them where possible, respecting their dignity and autonomy. In NHS West Yorkshire ICB v MK, the court acknowledged that MK’s advanced dementia made direct consultation difficult. However, the judgment also reflected on the importance of considering what MK’s wishes might have been based on her previous interactions and statements before her condition deteriorated. The court took into account the fact that MK, when she had more capacity, had valued her son AK’s company, which made the decision to limit his contact a complex and sensitive matter.
• Consulting P’s Family: Consulting with family members is crucial, as their insights can provide valuable context regarding the protected person’s history, preferences, and values. In Re G, the court criticised the lack of consultation with family members in the initial stages, noting that this oversight could lead to decisions that are less informed and potentially less aligned with the protected person’s best interests. The case emphasised that meaningful engagement with family members might reveal alternatives to injunctions, or at least provide a clearer understanding of the family dynamics at play.
Evidencing Proportionality
When applying for an injunction, applicants must ensure that the proposed order is proportional to the identified risks. The analysis in Re G places significant emphasis on the requirement that any injunction must not impose unnecessary restrictions on the respondent’s rights.
Scope
The scope of the injunction should be carefully tailored to the specific circumstances of the case. In MK, the injunction was specifically crafted to allow AK to visit MK twice a week for one hour each, reflecting the court’s attempt to balance the need for protection with the preservation of familial ties. The court recognised that while AK’s actions needed to be curtailed to protect MK’s care arrangements, it was also important not to completely sever his relationship with his mother, which MK valued.
Duration
The duration of the injunction should be proportional to the anticipated need for protection. In Re G, the Court of Appeal was cautious about the imposition of indefinite injunctions. The court suggested that injunctions should generally be time-limited, with the opportunity for review and renewal if necessary. In MK’s case, the court initially extended the injunction for three years, rather than making it indefinite, acknowledging the importance of reassessing the situation over time. However, the court later decided to make the injunction indefinite after several years of no change in AK’s behavior, indicating that the need for protection was ongoing.
Appropriate Evidence
Applicants should submit comprehensive evidence that supports the necessity and proportionality of the injunction. This evidence should include:
Professional Assessments
In MK, the court relied heavily on professional assessments from MK’s care team and health case manager. These assessments documented the risks posed by AK’s involvement in MK’s care, particularly his opposition to her medication regime, which was crucial for her health and stability. The professional opinions provided the court with a solid basis for determining that an injunction was necessary.
Witness Statements
In Re G, the court noted the value of witness statements from family members and carers who had direct knowledge of the situation. These statements can offer crucial insights into the day-to-day impact of the respondent’s actions on the protected person, as well as the broader family dynamics. The court in Re G highlighted that these first-hand accounts often reveal the emotional and psychological effects that may not be fully captured in professional assessments alone.
Documentary Evidence
In both cases, the courts emphasised the importance of documentary evidence, such as care plans, previous court orders, and communication records. In MK’s case, the court considered the historical context of the ongoing disputes over MK’s care, using previous judgments and orders to inform its decision to extend the injunction. This demonstrated the importance of maintaining a comprehensive record of the case’s history to support ongoing legal decisions.
Regular Reviews and Flexibility
The court in Re G stressed the importance of regular reviews of injunction orders to ensure they remain necessary and proportionate as circumstances change.
• Applicants should suggest specific review dates within their application, ensuring that the court has an opportunity to reassess the injunction periodically. In Re G, the court was clear that regular reviews are essential to prevent injunctions from becoming outdated or overly restrictive as the protected person’s situation evolves. In the case of MK, while the court ultimately decided on an indefinite injunction, it made clear that this decision was based on the particular facts of the case and the ongoing risk AK posed. The decision also emphasised that there remains the possibility for AK to apply for a variation or discharge if circumstances change.
• If circumstances change significantly, applicants should be prepared to request modifications to the injunction, either to tighten or relax the restrictions. In Re G, the court highlighted the need for flexibility, noting that injunctions should not be seen as static but as tools that may need adjustment to better fit the protected person’s current needs.
Effective Management
Procedural delays can undermine the effectiveness of injunctions. As seen in MK, delays in filing applications or scheduling hearings can lead to temporary extensions of injunctions without a full hearing, which may not always serve the protected person’s best interests.
• Applicants must ensure that their applications are filed well in advance of any existing orders expiring. This allows the court sufficient time to schedule a hearing and make a considered decision, rather than relying on interim measures. In MK’s case, the court criticised the late filing of the application to extend the injunction, which led to procedural complications and a temporary extension of the order without a comprehensive review.
• Effective case management is essential to prevent unnecessary delays. Applicants should coordinate with the court to ensure that all procedural steps are completed promptly, and that hearings are scheduled without undue delay. This includes being responsive to court communications and ensuring that all necessary documentation is prepared and submitted on time. The court in Re G highlighted the importance of maintaining momentum in these cases to ensure that the protective measures are timely and effective.
The cases of MK and Re G provide a detailed roadmap for how injunction applications should be approached in the Court of Protection. By adhering to the principles of proportionality, necessity, and thorough consultation, applicants can ensure that their applications are well-founded and likely to succeed. Moreover, by anticipating and addressing potential procedural pitfalls, applicants can help safeguard the protected person’s welfare while also respecting the rights of those involved.
Jessica Jarvis 
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