Ignoring The Court Of Protection? What's The Sanction If You Do?

The Court of Protection has held that a declaration of best interests in relation to an incapable person under Mental Capacity Act 2005 (MCA) does not have the legal status of a court order and that therefore a person acting in defiance of the declaration could not be in contempt of court. This was of key relevance in the case of MASM v MMAM and others [2015] EWCOP 3. In 2014 Hayden J declared that it was in the best interests of a UK resident elderly lady -originally from Saudi Arabia- to stay in a residential home in England. In defiance of that declaration, her son arranged for her to be taken to Saudi Arabia to make her permanent home there. The question before the Court was what action could be taken against the son; was the declaration to be treated as a court order in which case its breach could lead to penal sanctions? Hayden J concluded that the declaration of best interests was not an order. Although it was a formal, explicit statement or announcement it did not have the mandatory imperative of an order and anyone acting in defiance of it could not be held to be in contempt of court.

Hayden J make a number of suggestions as to how the Court might deal with this kind of situation in the future. These included the Court making an order under Section 16 MCA which could, where appropriate, be drafted in more prescriptive language. In relation to residence cases like this one, the Court should always consider whether to reinforce any order under Section 16 with a declaration under Section 15 which would clarify that it would be unlawful to remove the vulnerable...