The Court of Protection clarified that it has the power to make injunctions and orders to ensure compliance with ‘best interests’ decisions as outline in Section 16(5) MCA 2005.
Background:
This case concerns A, a vulnerable young man aged 22 with autism, severe learning disabilities, microcephaly and global developmental delay.
In previous Court of Protection proceedings, A was found to lack capacity regarding his residence, care, support, and contact with others, and the best interests decisions were made that A should reside in a supported living placement with limited contact with his mother, B, and her partner, C. Since then, A has repeatedly been removed from the placement by his mother, in breach of the Court order. The mother was requested to return A to the placement and ripped the copy of the Tier 1 order up. Further orders were made with penal notices, but the local authority could not serve them because they did not know where A, his mother and her partner were.
The matters were escalated to Tier 3 with the local authority making an urgent application for a collection order and disclosure of information from telephone companies to assist in identifying their whereabouts.
Decision:
Court of Protection granted the collection order for return given the respondents’ non-engagement and the various removals of A which resulted in significant disruption in his care and support.
The Court also issued orders against two telephone companies to assist in locating B. The orders were deemed necessary and proportionate to safeguard A's welfare, considering his vulnerability and the repeated unauthorised removals. Moreover, without such an order, any “earlier orders would be ineffective in the face of the actions of the second and third respondents”.
McKendrick KC emphasised the importance of adhering to the statutory scheme under the Mental Capacity Act (MCA) 2005, only resorting to the inherent jurisdiction “in those limited circumstances where a true statutory gap exists and where it is necessary to do so”. He noted the seriousness of the proceedings and the hearing without notice. However, the situation was caused by the lack of engagement of B and C. Based on the Court of Appeal’s ruling in Re G (COP Injunction) [2022] the Court of Protection has the power to make injunctions under Section 16(5) MCA 2005 if it is to enforce a best interests decision. In granting such injunctions, the Court must meet the just and convenient test.
The Court also ruled that the orders were proportionate and necessary even if they interfered with the second and third respondents' Article 8 ECHR rights to a private or family life. The interests and safeguarding of A’s welfare were paramount.
A postscript made clear that A was returned to the placement some days later.
Implications:
This judgement is of great significance as pointed out by McKendrick KC himself. The question of how far the Court of Protection can go to ensure its orders are complied with has not been answered since the Mental Capacity Act 2005. This case clarifies that the Court of Protection can make injunctions and orders to ensure compliance with best interests decisions based on Section 16(5) MCA 2005.
The Judge refused to engage in the ‘potential debate as to whether a Tier 1 or Tier 2 Judge could make these orders in reliance on s. 47 MCA.’ Consequently, we might see future cases on this topic which might answer this specific question.