Injunctions in the Court of Protection: Protecting vulnerable adults from obstructive behaviour

The Court of Protection is routinely called upon to make declarations about a person’s capacity to decide various matters, and to make best interests decisions for those who lack capacity. In extreme circumstances, the Court can also issue injunctions where there are concerns that a best interests decision may be obstructed by another person’s behaviour or actions. 

This article examines the recent case of University College London Hospitals NHS Foundation Trust v AB [2025] EWCOP 45 (T3), in which we were pleased to represent the applicant NHS Trust. The Court of Protection granted orders authorising the applicant health authorities (and relevant third parties) to implement its best interests decision, including the ability to enter the property where the vulnerable person lived to ensure professionals could access him and convey him to hospital for assessment and treatment. The judgment provides guidance on when and how the Court may issue such injunctive orders. 

Our specialist team acts for health and social care providers and commissioners in all manner of Court of Protection proceedings, including applications for declarations as to capacity, best interests decisions and injunctive relief. Please do get in touch if you require any advice or assistance.

Background

The case concerned AB, who was born with meningo-encephalocele which disrupted his brain development, resulting in severe disabilities and complex needs. AB had a percutaneous endoscopic gastrostomy (PEG) tube for medication and fluids, which had not been changed for several years. AB was eligible for NHS continuing healthcare funding (CHC) and lived at home with his mother, EF, with a comprehensive care package.

In August 2022, EF was appointed as AB’s personal welfare deputy, with authority to make decisions about his residence, day-to-day care, medical treatment, care services and social activities. EF was not given authority to prevent any person from having contact with AB or to make decisions about healthcare provision responsibility.

In December 2023, EF reported concerns that AB's PEG tube was leaking. However, scheduled replacement appointments were not attended across 2024. Similarly, although appointments had been offered, AB had not been seen face-to-face by the neurology team since June 2017, despite concerns about ongoing seizures and EF regularly administering emergency medication to AB.

The Trust's efforts to secure AB's attendance for PEG and neurology reviews led to an apparent breakdown in the relationship between EF and the healthcare teams, with the ICB's attempts to review AB's care needs meeting similar difficulties. This ultimately resulted in the statutory bodies issuing a joint application in the Court of Protection. 

What was the Court asked to decide?

The applicant Trust and ICB sought the following:

1. A declaration that AB lacked capacity to make decisions about his care and treatment, and
2. A Court order that it was in AB’s best interests to be admitted to hospital for up to five days to be reviewed by gastroenterology and neurology clinicians in respect of his PEG tube and epilepsy diagnosis, and for a CHC review to be completed.

A detailed care plan was developed, outlining the specific hospital assessments necessary for AB, including video-EEG monitoring/telemetry to understand his epileptic activity, basic clinical tests and an assessment of his PEG tube. If replacement of the PEG tube was required, the care plan stipulated AB would undergo surgery for this. A conveyance plan was also devised, stating that AB should be transported to hospital by EF. However, if this didn't happen, the fall-back position would be for the Trust/ICB to transport him, with assistance from trained security personnel and, if necessary, police.

Although EF appeared to agree that AB lacked capacity in the relevant domains and seemed content with the care plan, she also sought to adjourn several court hearings and did not engage in the substantive hearing. The applicants therefore asked the Court to make an injunctive order under section 16(5) of the Mental Capacity Act (MCA), to ensure that AB was conveyed to hospital. 

The Court’s decision on capacity

The court considered extensive evidence regarding AB's capacity, including the 2022 deputyship order, medical evidence from a consultant neurologist and more recent capacity assessments. The judge concluded that AB was unable to make the decisions in question because of an impairment or disturbance in the functioning of his mind or brain, namely the meningo-encephalocele. The judge determined that AB lacked capacity in respect of the matters that were the subject of the Court application, but also more broadly in relation to complex personal welfare decisions. 

The Court's decision on best interests

The medical evidence was unanimous that it was in AB's best interests to be conveyed to hospital for the assessments and treatment outlined in the care plan. The judge agreed that, because of the risks arising both from a malfunctioning PEG and from a drugs regime not currently attuned to his neurological needs, the admission to hospital was “absolutely necessary.” AB had also indicated willingness to have his tube changed and seizures monitored. An updated care needs assessment was also necessary and in his best interests.

Injunctive orders in the Court of Protection

Injunctive orders where there is a deputy

The judge confirmed that, where P has a court appointed deputy, the court can impose a duty on that deputy to give effect to an order it is making in P’s best interests, pursuant to section 16(5) MCA. If the deputy does not comply, that could be reason to revoke the deputyship under section 16(8) MCA. In extreme cases, where the court had placed a penal notice on the order, the deputy could be held in contempt of court. 

Injunctive orders where there is no deputy

It is well-established that the Court of Protection has the power to grant an injunction, pursuant to section 16(5) MCA, if there is a risk that a best interests decision made by the court may be obstructed or frustrated by any person’s behaviour or actions. However, an injunction can only be granted where it is “just and convenient”.

Injunctions can prohibit a person from acting in a certain way or require persons to do something to ensure the best interests decision is given effect. For example, in London Borough of Hackney v A [2024] EWCOP 33 (T3), an order was made against two telephone companies, requiring them to disclose information to assist in identifying the whereabouts of a vulnerable young man, who was missing amid concerns for his welfare and safety. The High Court can also grant such injunctions under its inherent jurisdiction.

Application to this case

The judge said that he hoped the orders he made would be put into effect by agreement and collaboration between the Trust/ICB and EF – if not, there were likely to be distressing consequences for AB. 

However, given EF had been uncooperative in the past and the Court was keen to ensure no further delay in AB’s admission and treatment, the judge considered it necessary and proportionate to make an injunctive order pursuant to section 16(5) MCA and the inherent jurisdiction of the High Court. The order directed and authorised the Trust, ICB and relevant third parties to implement the Court’s best interest decision, including entering EF’s property to gain access to AB to convey him to hospital for admission and treatment if necessary, in accordance with the care plan. 

This case demonstrates the Court of Protection's willingness to exercise its injunctive powers under section 16(5) MCA and / or through the inherent jurisdiction, to safeguard vulnerable individuals when their best interests may be frustrated by obstructive conduct. Health and social care bodies should be aware that such orders are available where necessary and proportionate to ensure critical treatment and assessments can proceed without delay.

The case was also an excellent example of thoughtful public organisations collaborating in order to produce a practical plan, which was then authorised by the Court as being in AB’s best interests.