Mental Capacity Resource Centre

Summary A seven member constitution of the Supreme Court has set aside the decision of P v Cheshire West and Chester Council [2014] UKSC 19 (‘Cheshire West’). In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, the Supreme Court determined that: a) The Cheshire West ‘acid test’ for identifying the objective element of deprivation of liberty was wrong and departed from Strasbourg case law; b) A person without mental capacity to make decisions about their residence and care arrangements can [...]

Summary The Court of Appeal has set aside the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (summarised in the July 2025 Practice and Procedure Report). The tragic underlying factors of the case were set out in Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3), and involved a dispute over the validity of Carl Gardner’s Advance Decision to Refuse Treatment (‘ADRT’), which once given effect, led to the cessation of treatment and the end of Mr Gardner’s life. A satellite issue in the underlying application had been an application by an observer, Professor [...]

Summary The issue of visiting in care homes is a distinctly hot topic.  Linked, it appears, to high profile media coverage, DHSC has announced a review of Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, itself introduced in the wake of the pandemic.  Regulation 9A does not, however, apply to judges making decisions in the Court of Protection. The media coverage noted above was focused primarily on the role of the Court of Protection.  Whilst it does not expressly refer to that coverage, it does not require too much reading between the lines to [...]

Summary This is both an important and an interesting decision.  It is important because Theis J set out a clear set of expectations instructing experts, and interesting because it is an example of what is now a rare beast, a contest as to whether circumstances gave rise to a deprivation of liberty.   It also includes what is now an increasingly standard reminder that dividing care and residence decisions can frequently be artificial. Instructing experts The guidance provided by Theis J requires reproduction in full. At the invitation of the court the parties have liaised and produced an extremely helpful agreed [...]

Summary In this case, Poole J was concerned with a woman, BC, in her early 30s who was born into and brought up in an ultra-orthodox religious community. BC began her relationship with EF, who also came from the same ultra-orthodox community, some ten years ago. The key issues for Poole J to decide were whether BC had capacity to make decisions about residence and engagement in sexual relations. BC was diagnosed with “autism spectrum condition, complex PTSD, cerebral palsy, partial deafness, R[a]ynard’s deafness, R[a]ynard’s syndrome, diplegia and agoraphobia.” An independent expert confirmed her agreement with the diagnosis of autism [...]

Summary This application related to ‘RH,’ who was 35 years old. The Trust sought orders to set ceilings of treatment on RH’s renal replacement therapy, mechanical ventilation and attempts at CPR. The clinicians would be allowed to escalate beyond these ceilings of treatment if clinically indicated, but would have the court’s consent not to do so. This position was broadly supported by the Official Solicitor acting on behalf of RH, and opposed by RH’s mother, AH. RH had a history of liver disease for which he had received significant treatment since childhood (including a liver transplant in his teen). Sadly, [...]

Summary In Barking, Havering and Redbridge University Hospitals NHS Trust v AS & T [2026] EWCOP 15 (T3), Peel J considered an application for declaration that it was in the best interests of a woman identified as AS to continue ‘at risk feeding’, and to place her on a palliative care approach to ensure her comfort before discharging her from hospital, back to the community. The application was opposed by her family, who wished for her to have all treatments, including either nasogastric (NG) or PEG feeding. In June 2025 AS had signed an ‘Advance Statement’ in which she stated [...]

Summary CGT (acting through his father, SGT) as litigation friend, brought a judicial review of a decision taken by West Sussex County Council in June 2024 to: Refuse to provide care and support to CGT on the basis that he did not financially qualify; and Refuse to reimburse CGT for discretionary funding he had been provided since June 2020. CGT was born in 1994. He suffered a brain injury as an infant which led to his having a severe cognitive impairment, visual impairment, epilepsy and other life-long difficulties. He has lived in supported accommodation since 2013, and has been found [...]

Summary Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3) provides a snapshot of the realities of navigating health and welfare decision-making of a kind that rarely makes it to court.[1]  In short compass, it concerns a failure by a hospital to consult with an attorney regarding decision-making about life-sustaining treatment.  In the context of a considerable focus on understanding about the MCA in Parliament at the moment, it is important to emphasise that failures to apply the Act are not uncommon, including (here) failures to comply with a clear statutory duty to consult.  What is uncommon [...]

Summary Re DA (Whether to replace a Single Joint Expert) [2026] EWCOP 7 (T2) is a decision which, as its name helpfully makes clear, is about a procedural point that sometimes arises, namely where one party to a joint instruction of an expert (here a psychiatrist) is sufficiently discontented with their report that they want another run at matters.  On the facts of the case before him, HHJ Burrows rejected the criticisms of the expert levelled at him by a number of the parties, both as to whether he had acted improperly in having a discussion with the solicitor for [...]