Patricia v Cygnet Healthcare Ltd & Ors; Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF; Birmingham and Solihull Mental Health NHS Foundation Trust v CG & Anor

Three recent cases have considered the interaction between the MCA and the MHA in some detail.

In the most recent iteration in the very complex and difficult case concerning a woman identified as “Patricia,” Patricia v Cygnet Healthcare Ltd & Ors [2026] EWCOP 29 (T3). Peel J had to consider the question of whether the Court of Protection could make decisions about the medical treatment for mental disorder of a person subject to Part 4 of the Mental Health Act 1983.  Perhaps surprisingly, this issue has not been the subject of express consideration before, although there have been a significant number of cases in which (almost invariably) the relevant treating bodies have sought confirmation from the Court of Protection that further treatment for anorexia is not in the detained person’s best interests.  The precise jurisdictional basis for this has always been (to use a technical term) slightly fishy, given that s.28 MCA 2005 expressly provides that nothing in the MCA 2005 authorises anyone (a) to give a patient medical treatment for mental disorder, or (b) to consent to a patient’s being given medical treatment for mental disorder, if, at the time when it is proposed to treat the patient, their treatment is regulated by Part 4 MHA 1983.  It could, perhaps, be justified by reference to the very broad scope of s.15(1)(c) MCA 2005, which provides for the making of declarations of lawfulness of actions in relation to those lacking the relevant decision-making capacity.  (Parenthetically, where the question is about further admission, as opposed to treatment, to have the Court of Protection determining that non-admission is in a person’s best interests might also be thought to be treading on the public law toes of those charged by statute with determining whether the person meets the criteria for admission).

Peel J made clear that, by virtue of s.28 MCA 2005, if the treatment falls within the definition of medical treatment for mental disorder, the Court of Protection has no power to make decisions on the person’s behalf about that treatment.  This is not a surprising conclusion when the two statutory frameworks are read side-by-side, but it does have a number of implications.  Peel J set some of them out thus:

41. Although not directly relevant to the application before me, this case threw up a number of procedural matters in circumstances where an incapacitous patient is detained under MHA 1983 and where, as I find, by reason of s28 of the MCA 2005, the Court of Protection does not have power to make best interests orders in relation to medical treatment.

42. Where there is an issue, or any doubt about, whether a particular treatment falls within s63/s145(4) of the MHA 1983, the matter should be brought before the court: A NHS Trust v A [2013] EWHC 2442 (Fam)per Baker J (as he then was) at para 80. The court will consider the matter on a “full merits based review” (following the applicable judicial review test on challenges to s63): para 13 of R (on the application of JB) v Haddock (Responsible Medical Officer) [2006] EWCA Civ 961. In this case, there is no such doubt.

43. Where a patient is receiving treatment under s63 MHA 1983, and agreement is reached as to withdrawing or providing life sustaining treatment, there is no obligation on the parties to come to court: An NHS Trust and others v Y (Intensive Care Society and others intervening) [2018] UKSC 46.

44. I acknowledge that in some instances the clinicians/hospital/NHS Trust prefer to seek the approval of the court for any such agreement. In some reported cases (as noted above), that has taken place in the Court of Protection; in others (noted above), it has taken place in the Family Division under the inherent jurisdiction. And in Leeds and York Partnership NHS Foundation Trust v FF and GG [2025] EWCOP 26 (T3) McKendrick J made declarations both under s19 of the Senior Courts and under s16 of the MCA 2005. It seems to me that in respect of treatment encompassed by s63 of the MHA 1983 (whether life sustaining or not) agreed applications should not be brought to the Court of Protection. Rather, they should be brought by way of inherent jurisdiction/declaratory relief under s19 of the SCA 1981. Arguably, the inherent jurisdiction based on the “vulnerable adult” jurisprudence is the preferred route in the light of the Vice-President’s comprehensive judgment in the Cumbria case [supra]explaining its existence and applicability where the incapacitous person is detained under s3 MHA 1983.

45. Where there is disagreement in respect of treatment which falls under s63 of the MHA 1983, Mr Patel KC submitted, and I agree, that relief cannot be sought by the patient under the inherent jurisdiction because the statutory provisions of the MHA 1983 provide the answer, namely that the views of the clinicians prevail. For that reason, the application before me was confined to the Court of Protection.

Other remedies available to Patricia

46. This does not mean that Patricia is without potential remedies. It is common ground that she is entitled to bring judicial review proceedings in respect of the s63 treatment. She is also entitled to bring a Human Rights challenge under s7 of the Human Rights Act 1998. I make no further comment on these matters.

The Cumbria case to which Peel J made reference is the decision of Theis J in Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF [2026] EWHC 1621 (Fam), a decision in which the Vice-President of the Court of Protection examined in detail the question of whether and when the inherent jurisdiction of the High Court can be used in such situations.  She concluded that:

70. […] whilst each case will need to be considered on its own particular facts:

(1) This court’s inherent jurisdiction is, in principle, available in circumstances where there is no remedy or not an effective remedy in accordance with the obligations under the ECHR, or there is some other identified reason for making the application and seeking orders.

(2) This court’s inherent jurisdiction is, in principle, available whether the person concerned lacks capacity (see A NHS Trust v A at [92]) or is vulnerable (see DL at [53]-[54]).

(3) Before making an application to invoke the inherent jurisdiction very careful scrutiny must be given by the applicant as to the need for and the basis of the inherent jurisdiction to make any orders sought. In this case Ms Watson’s careful analysis provided that, namely (i) QF lacked litigation capacity such that judicial review cannot provide a sufficient, practical or effective remedy; (ii) the decision whether to give, delay or withhold treatment is finely balanced; and (iii) exercising or not exercising the discretionary power to provide that treatment under s63 MHA within a particular timeframe may lead to premature death.

(4) If an application is made the applicant should identify in the application the underlying rationale for making the application, set out the orders sought and what, if any, rights are engaged under the ECHR.

Theis J also made some observations on the procedure required.  In the case before her, the proceedings had been brought by way of a claim form under Part 8 of the CPR, used where the question or remedy is unlikely to involve a significant dispute of fact.  That had been endorsed by McKendrick J in Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26.  Theis J observed that:

72. Whilst it is right that, depending on the circumstances of the case, there may be no factual dispute, that position may not remain. The overriding objective in Part 1 CPR and the courts wide case management powers, together with rule 8.8 CPR, enables the court to keep under review on a case by case basis whether the Part 8 procedure remains the correct procedure.

73. As a matter of practice, in circumstances such as this case, a Trust may wish to actively consider securing an external second opinion as a matter of urgency prior to issuing proceedings to support and inform any decision making in these difficult cases and whether an application for orders under the inherent jurisdiction is required.
74. Once the decision is made to issue an application invoking the inherent jurisdiction in circumstances where declarations are sought, as in this case, the application should be accompanied by a proposed draft directions order and the Official Solicitor should be notified. In addition, if the hearing is to be in public, a draft Reporting Restrictions Order that has complied with the relevant Practice Direction should also be submitted with the application. The application once issued should be allocated immediately to a full time Judge of the Division for directions.

The third case, Birmingham and Solihull Mental Health NHS Foundation Trust v CG & Anor [2026] EWCOP 37 (T3), concerned a situation where a Trust had initially sought confirmation from the Court of Protection that it was not required to bring about further compulsory treatment of a woman with anorexia (detained under the MHA 1983).  The Trust, however, then sought to withdraw the application; a course of action agreed to by all parties.  Theis J gave a judgment explaining why this course of action was in CG’s best interests.  She agreed with:

64. […] the observations of Ms Scott on behalf of the Official Solicitor that it would have been of benefit to CG and her legal representatives to have been able to explain to her from the start of the proceedings details of the relief being sought, the powers of the court to grant that relief and the potential consequences for CG and the course the litigation was going to take. The precise declarations being sought should, in my judgment, always be set out in the application.

65. In Patriciathe issue of the court’s jurisdiction was raised at an early stage and determined within a week after proceedings had been commenced on 30 June 2026. In that case the other parties raised the issue of jurisdiction at the first hearing before me on 3 July 2026 and the hearing before Peel J took place on 8 July 2026. Where possible, any issue as to jurisdiction should be raised with the other parties and the court at the earliest opportunity so that directions can be made for an early determination of that issue to avoid the disadvantages to P of continuing uncertainty caused by ongoing proceedings.

Theis J identified that:

66. In the joint document submitted by the parties after the conclusion of this hearing they set out the following list of factors that NHS Trusts should consider before deciding whether to make an application to the Court in respect of the proposed treatment plan for a patient with anorexia who is considered to lack capacity to make decisions about their medical treatment, where the decision not to provide treatment (including by way of forcible feeding) may be life threatening.

67. In relation to patients who are not detainedunder the MHA (irrespective of whether the patient meets or would probably meet the criteria for detention under that Act) they suggest the relevant factors in such cases should include the following:

(1) Is there any dispute that the patient lacks relevant capacity?

(2) Is there any material dispute among the clinicians as to the treatment plan and what treatment is in the patient’s best interests?

(3) Does the patient object to the treatment plan?

(4) Is there a dispute as to the treatment plan and what treatment is in the patient’s best interests, or as to the need to obtain further medical opinions before a decision is reached:

(a) from those with an interest in the patient’s welfare; and or

(b) from any Independent Mental Capacity Advocate appointed in respect of the patient?

(5) Is there any identified medical professional who proposes to offer alternative treatment to that which is in the treatment plan?

(6) Has the NHS Trust obtained an independent external second opinion from an appropriately qualified and experienced clinician (where practicable)?

(7) Is there any material dispute from the author of the second opinion as to the treatment plan and what treatment is in the patient’s best interests?

(8) Has the NHS taken all reasonable and practicable steps short of making an application to the Court to resolve any material dispute?

(9) Is the way forward finely balanced?

(10) What impact would the NHS Trust bringing / the patient participating in legal proceedings have on the patient’s welfare?

68. The parties agree that, if the answer to any of (1) – (5) or (7) – (9) is “yes”, that would suggest that the NHS Trust would be ‘well advised’to make an application to the Court, but if the answer to all of (1) – (8) is “no” then the NHS Trust should consider very carefully whether there is any need to make an application.

With her characteristic prudence, Theis J noted that:

69. In considering the matters listed above it is important to remember that each case is fact specific and any action will need to be considered in the light of the particular facts of that case. However, I do consider the non-exhaustive list of factors set out above provides a helpful framework to inform decision making as to whether an application needs to be made to the court, or not.

70. In addition to the decision whether an application needs to be made, or not, there must be careful consideration given as to whether any application should be made in the Court of Protection or the High Court, involving the Inherent Jurisdiction, or both.

71. Any application issued in these circumstances needs to very clearly set out why that particular procedural route has been taken, what declarations are being sought and, if required, address the applicability, or not, of ss16A, 28 and Schedule 1A MCA.

A more thorny issue was as to what “finely balanced” meant:

72. In their document submitted after the hearing the parties invited me to give guidance on ‘what ‘finely balanced’ means where there is unanimity as to the treatment plan’.As this issue was not addressed in the written or oral submissions of the parties I do not consider it would be appropriate to accept this invitation. If required, it can be considered in a case where that is an issue between the parties.

73. All I can do is set out what is stated in Epsomat [61] – [62] and [65] – [69] and draw attention to the reference in that judgment to the Royal College of Physicians and British Medical Association guidance regarding clinically assisted nutrition and hydration (CANH) for adults who lack capacity to consent. This guidance suggests that a decision may be considered finely balanced if there remains ‘on going uncertainty’.Baker LJ recognised in [67] that such guidance could have wider application to other life-sustaining treatment other than CANH. As Ms Butler-Cole astutely observed in her written submissions ‘Sensitive decisions with serious implications for P are not necessarily finely balanced and Trusts making applications such as the present need to focus on whether the decision is truly arguable either way, or whether they are in reality seeking a court declaration for defensive purposes”.

74. Permission has been given to both parties in Epsom to appeal to the Supreme Court.

Comment

There are four implications arising from these three judgments.

The first is that the decision of Peel J can be read as implicit confirmation that the fact that person lacks capacity to make a decision about their medical treatment for mental disorder does not mean that Epsom applies so as to require clinicians applying the MHA 1983 to take ‘best interests’ as their yardstick, but rather the provisions of Part 4 MHA 1983.[1]

The second, linked, is that in due course Part 4 MHA 1983 will be brought much close to the provisions of the MCA 2005 by the Mental Health Act 2025 so as to make the factors to be considered by a clinician determining what treatment to give under Part 4 very similar to those which are taken into account on a ‘best interests’ basis (they cannot be identical, and the term ‘best interests’ cannot be used because Part 4 can apply to those who have capacity)

The third is that it might be thought rather optimistic of Peel J to consider that Patricia could bring a challenge by way of judicial review.  The MHA Review expressly recommended that there be a route of challenge within the MH Tribunal in relation to medical treatment decisions precisely because judicial review is (in reality) very close to a non-starter.  That recommendation was not taken up, and, whilst the changes to be brought about the MHA 2025 will enable a closer scrutiny of medical treatment decisions by the Tribunal as part of the overall ‘package,’ they do not ultimately provide the direct counterpart to the scrutiny available before the Court of Protection.  Whilst there are treatment safeguards available under Part 4 (most obviously the SOAD procedure) which are being strengthened by the MHA 2025 changes, safeguards which do not apply when the MCA is in play and reliance is therefore placed solely on s.5 MCA 2005, it is perhaps not immediately obvious why – as regards judicial oversight – there should be such a difference between those under Part 4 MHA and those falling under the MCA.

The fourth implication is that the Cumbria case reinforces the need for there to be a Practice Direction under the CPR for inherent jurisdiction applications, both such as the (relatively niche) ones in contemplation here, and the rather more extensive number of cases brought to seek relief in cases involving coercive control.  The CPR is not well-suited to these sorts of cases, and a Practice Direction would make navigation of its provisions as painless as possible

[1] The subsequent observations made by Theis J about Epsom in the Birmingham case were expressly made in relation to patients who are not detained under the MHA 1983: see paragraph 67.