Re G (Court of Protection: Injunction)

In Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, arising out of a difficult and long-running medical treatment case being heard by Hayden J, the Court of Appeal has definitively set out the test that needs to be applied by a Court of Protection judge in deciding whether to grant an injunction. The facts of the case are complicated, and the jurisdictional arguments on the appeal somewhat esoteric, but for wider purposes, the Court of Appeal helpfully summarised the position at paragraph 82 as follows: 

The Court of Protection does have power to grant injunctions under s.16(5) of the 2005 Act, both in the case where a deputy has been appointed under s.16(2)(b) and in the case where the Court has made an order taking a decision for P under s.16(2)(a). In doing so, it is exercising the power conferred on it by s.47(1) and such an injunction can therefore only be granted when it is just and convenient to do so. This requirement is now to be understood in line with the majority judgment in Broad Idea as being satisfied where there is an interest which merits protection and a legal or equitable principle which justifies exercising the power to order the defendant to do or not do something. In the present case [where the injunction was granted in support of a best interests decision in relation to contact between P and family members], as is likely to be the case wherever an injunction is granted to prevent the Court’s decision under s.16(2)(a) from being frustrated or undermined, those requirements are satisfied because [P’s] interest in the December order being given effect to is an interest that merits protection, and the principle that the Court may make ancillary orders to prevent its orders being frustrated is ample justification for the grant of injunctive relief if the facts merit it. 

The Court of Appeal found that the decision of Hayden J to grant injunctions against P’s father and mother, had, in fact, fulfilled the ‘just and convenient’ test, even if he did not spell it out in the terms set out above.   However, the position was different in relation to P’s grandmother.   She had only been joined as a respondent on the first day of the hearing, was not represented, and attend remotely by mobile phone from her granddaughter’s bedside.  During the course of the hearing a revised draft order was produced, naming the grandmother as a respondent to the injunction and including a penal notice.  The Court of Appeal identified at paragraph 104 that “[i]t does not appear that the grandmother was served with this document and it seems unlikely that she knew of the very significant changes from her point of view, let alone understood their nature and effect.”   In the circumstances, the Court of Appeal observed that it was an “understatement” to say that that she had not been given proper notice of the case against her, continuing at paragraph 104 that: 

[…] it was obviously unjust and inappropriate to proceed with a full trial as against the grandmother and to have granted a final injunction endorsed with a penal notice against her. Basic principles of fairness required that she be given proper notice of the relief sought against her and the grounds for it. The proper course, in such circumstances, would have been to adjourn the hearing as against the grandmother and, if appropriate, to grant an interim injunction against her, on a without notice basis, with a return date specified. Such a course would have ensured the proper protection of G and her interests, whilst ensuring that the grandmother’s rights to a fair trial were also preserved.

Separately, another point of wider importance arose in consequence of Hayden J’s acceptance of anonymous hearsay evidence from 8 nurses as to the conduct of P’s father. P’s father criticised the judge for doing, so but the Court of Appeal rejected this criticism: 

93. In our judgment, there is no merit in Mr McKendrick’s criticisms of the judge’s treatment of the anonymous hearsay evidence. Very properly, Mr McKendrick had made similar submissions at first instance both on the interpretation and application of s.4 of the [Civil Evidence Act 1995] and on the case law, including the Moat Housing decision. It is evident that the judge accepted those submissions and applied the guidance in the statute and case law when considering the hearsay evidence given by the anonymous nurses. The judge plainly recognised that he had to proceed with caution when assessing the weight to be attached to the evidence and took conspicuous pains to explain his approach and analysis. There was clear evidence from Nurse T and Dr B, accepted by the judge, demonstrating, as suggested by Brooke LJ in the Moat Housing case, the route by which the anonymous evidence had emerged and why it was neither reasonable nor practicable to identify and adduce direct evidence from the nurses. The fact that they are professionally qualified, trained and supported within the Trust, and accustomed to working with the families of patients did not obviate the need for anonymity in this case, given the evidence about the father’s attitude provided by Nurse T, Dr B and the father himself. 

Comment

The Court of Appeal’s confirmation of the test to grant an injunction is helpful, and it is particularly helpful that that they made clear that it is in line with the “just and convenient” test applied by the High Court when deciding whether to grant an injunction, such that there is no need for another line of jurisprudence to have to develop to identify whether and how “just and convenient” differs to “necessary and expedient” (the words that appear in s.16(5) MCA 2005).   It is equally helpful that the Court of Appeal recognised that the mere fact that the individuals concerned were professionals did not obviate a need for the protection of anonymity.  Given the hoops that need to be jumped through before weight can be placed upon anonymous evidence, this should not be seen as licence for the creation of anonymous professional whispering campaigns, but rather a recognition that professionals can and do have their own rights.