“An absolute star”
Chambers & Partners 2021
Alex Ruck Keene is an experienced barrister, writer and educator. His practice is focused on mental capacity and mental health law, in which he is able to provide specialist advice and representation, as well as delivering expert training for front line professionals. He also writes extensively in the field, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Report, the ‘bible’ for solicitors (and others) working in the area. He is the creator of the website http://www.mentalcapacitylawandpolicy.org.uk/, providing resources and expert commentary on some of the most difficult mental capacity issues.
Alex is a Wellcome Research Fellow and Visiting Professor at King’s College London, a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London and a Research Affiliate at the Essex Autonomy Project, University of Essex. He spent 2016 on secondment to the Law Commission as a consultant to their Mental Capacity and Deprivation of Liberty Project and throughout 2018 was legal adviser to the Independent Review of the Mental Health Act 1983. He was a special adviser to the Joint Committee on Human Rights for their inquiry into the human rights implications of the Government’s response to COVID-19, and is currently a special adviser into their inquiry into human rights in the care setting.
Alex has been recognised for several years as one of the leading experts in the Mental Capacity Act 2005, being singled out as one of only two ‘star juniors’ in the Court of Protection: Health & Welfare category in Chambers 2016, a position he has held in each of the subsequent editions. He is ranked as one of only five tier 1 juniors for Community Care and Court of Protection in the Legal 500 2021. He is instructed in cases involving the Act by individuals, NHS bodies, local authorities and the Official Solicitor (both on behalf of subjects of proceedings and in his own right), as well as by foreign governments. He is one of the very few practitioners who has experience of appearing / advising upon all aspects of the Court of Protection’s jurisdiction (i.e. health and welfare and property and affairs, as well as its international jurisdiction). Because Alex’s work straddles policy, academic, and practice, he tends now to be instructed in cases raising novel points of law or policy, frequently at appellate level.
Recent endorsements in the legal directories include that he is “a true expert full of passion for the rule of law, fairness and equality. Has a very easy manner and ability to clearly explain complicated areas of law with clarity and ease.” (The Legal 500 2021); “Knows this area of law inside out and has a brain the size of a planet.” “He has excellent attention to detail and he’s creative in how he approaches cases, good to work with and very responsive”; (Chambers & Partners 2021). “An impressive barrister and the font of all knowledge on Court of Protection work.” (Chambers & Partners 2019).
Alex’s important instructions in the health and welfare field include: (1) Re JB (forthcoming), in which the Supreme Court will be considering for the first time the approach to capacity in the context of sexual relations; (2) Re T  UKSC 35in which the Supreme Court considered the use of the inherent jurisdiction in relation to the deprivation of liberty of children; (3) Re D  UKSC 42, in which the Supreme Court determined the meaning of deprivation of liberty for 16 and 17 year olds with impaired capacity; (4) An NHS Trust v Y  UKSC 46,  3 WLR 751, in which the Supreme Court confirmed that there is no obligation to seek Court of Protection approval before withdrawing life-sustaining treatment where there is agreement as to what is in the person’s best interests; (5) N v ACCG  UKSC 22,  2 WLR 1011, in which the Supreme Court definitively determined the interaction between the Court of Protection and the Administrative Court; (6) R (LF) v HM Senior Coroner for Inner South London  EWCA Civ 31,  QB 487 concerning deprivation of liberty in the intensive care setting; and (7) Aintree University Hospitals NHS Trust v James  UKSC 67  3 WLR 1299, the first case in which the Supreme Court considered the MCA 2005, in the context of delivery of treatment at the end of life. His expertise in mental capacity matters extends beyond pure Court of Protection matters; he was, for instance, instructed in Redcar & Cleveland Borough Council v PR  EWHC 2800 (Fam), a detailed examination of the scope of the inherent jurisdiction in relation to a vulnerable adult; and on behalf of the Law Society in R (EG) v The Parole Board of England and Wales  EWHC 1457 (Admin), concerning procedures in Parole Board hearings where the prisoner does not have capacity to instruct their own representative.
Alex’s expertise in the international jurisdiction of the Court of Protection is unrivalled. He has appeared in the majority of the reported cases, including Re MN  EWHC 1926 (Fam),  COPLR Con Vol 893, the first case to consider Schedule 3 to the Mental Capacity Act 2005; Re O  EWHC 3932 (COP),  Fam 197, concerning the definition of ‘habitual residence’ and the doctrine of forum non conveniens for purposes of Schedule 3; HSE of Ireland v PA & Ors  EWCOP 38,  Fam 47, the definitive examination of the procedures for recognition and enforcement of foreign protective measures; and The Health Service Executive of Ireland v Moorgate  EWCOP 12, in which Hayden J ‘stress-tested’ the relative protections of Schedule 3 and domestic legislation relating to compulsory mental health treatment. His instructions include cross-border cases with foreign elements ranging from Thailand to St Helena (where he was admitted to the Bar for purposes of arguing a novel cross-border case before the Supreme Court there). For the academic year 2013-4, he was a Visiting Fellow of the Institute of Advanced Legal Studies, during which he worked on The International Protection of Adults (OUP, 2015), the first book to examine the cross-border protection of the property and persons of adults with impaired capacity. He also co-wrote the new Part 23 of the Court of Protection Rules 2017 setting out the first structure for cross-border cases before the Court of Protection.
The majority of Alex’s instructions in cases concerning P’s property and affairs are advisory and/or do not lead to reported judgments. Exceptions include SBC v PBA and Others  EWHC 2580 (Fam)  COPLR Con Vol 1095, in which the Court considered again the statutory test for the appointment of both property and affairs and health and welfare deputies and gave guidance as to the status of the Code of Practice. Alex is a Member of the Society of Trust and Estate Practitioners.
Alex writes extensively on the MCA 2005. In addition to the cross-border book noted above, he edited and co-wrote the Court of Protection Handbook (3rd edition, 2019); is the editor of the BMA/Law Society Guide to the Assessment of Mental Capacity (BMA/Law Society, 4th edition 2015; 5th edition, forthcoming, 2021); and also writes/has written chapters in Jordan’s annual Court of Protection Practice textbook and the third edition of Mental Capacity Act Law and Practice (Jordans, 2015). He is co-editor, together with Victoria Butler-Cole, of the authoritative Court of Protection Law Reports series published by Jordans/Lexis Nexis. Together with other members of the 39 Essex Chambers Court of Protection team, he produces the monthly 39 Essex Chambers Mental Capacity Reports that are widely acknowledged as one of the most authoritative sources for cases determined before the Court of Protection, being described as a “bible” for solicitors in the field in Chambers & Partners 2013.
Alex has also prepared two guidance documents for the Department of Health on matters related to the Mental Capacity Act: “Acting as a Litigation Friend in the Court of Protection” (2014) (sole author); “Deprivation of Liberty: a Practical Guide” (Law Society, 2015, editor and co-author).
Alex has a keen interest in improving understanding of the MCA 2005 and improving the workings of the Court of Protection. He lectures widely on the Act and trains judges, social workers, doctors, nurses and other professionals who have cause to work with it. He sits on the Court of Protection Rules Committee, and is also a member of the International Family Law Committee, with a specific brief to raise the profile of cross-border capacity issues. He is a member of the Hive group established by the Vice-President to maintain the functioning of the Court of Protection in the COVID-19 crisis.
Alex sits – uniquely – on both the Mental Health and Disability Committee of the Law Society of England and Wales and on the Mental Health and Disability Sub-Committee of the Law Society of Scotland. On behalf of the Law Society of England & Wales, he intervened in R (EG) v Parole Board & Ors  EWHC 1457 (Admin), determining the obligations of the Parole Board in the case of prisoners with impaired decision-making capacity.
For the period 2017 to 2022 he is a Wellcome Research Fellow at Kings College London, working on a major international multi-disciplinary project entitled “Mental Health and Justice;” as a Visiting Professor he also co-leads the Mental Health, Ethics and Law MSc offered there. He was appointed Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London, in 2019.
Alex’s expertise in the field of mental capacity law has been recognised by Parliamentary bodies in England and further afield: in November 2013, Alex gave oral evidence to House of Lords Select Committee considering the operation of the MCA 2005 as part of a panel of legal experts addressing the functioning of the MCA 2005 and the Court of Protection. He also gave evidence to the ad hoc Committee of the Northern Ireland Assembly convened to consider the Mental Capacity Bill there introduced in 2015. At the request of Gerard Quinn, UN Special Rapporteur on the Rights of Persons with Disabilities, he also co-wrote a report in 2021 on the compatibility of the 2000 Hague Convention on the International Protection of Adults with the UNCRPD, available here.
Alex spent 2016 on secondment to the Law Commission as a consultant to their Mental Capacity and Deprivation of Liberty Project, which reported in March 2017. He was appointed as a special adviser to the Joint Committee on Human Rights in June 2020 for its inquiry into the human rights implications of the Government’s response to COVID-19, and in October 2021 as the special adviser for its inquiry into human rights in the care setting.
Alex spent 2018 as legal adviser to the independent Review of the Mental Health Act 1983, whose report can be found here. Alex’s significant instructions in the mental health field include (unreported) cases concerning remote assessment following the Devon case; (1) Sessay v (1) South London & Maudsley NHS (2) Met Police  2 WLR 1071, in which the Divisional Court had to consider for the first time the powers under which incapacitated patients can be required to remain upon hospital premises pending their admission under the MHA 1983; (2) TTM (By His Litigation Friend TM) (Claimant) v (1) Hackney London Borough Council (3) East London NHS Foundation Trust (Defendants) & Secretary of State for Health (Interested Party)  1 WLR 2873, where the Court of Appeal determined authoritatively the scope of Articles 5(1) and 5(5) ECHR in the context of admission for treatment under the MHA 1983); (3) K v G and another  All ER (D) 128 (Oct), the first successful appeal (as far as Counsel were aware) by a local authority against a refusal to grant displacement of a nearest relative; (4) M v East London NHS Foundation Trust (CO/1065/2009), a habeas corpus application arising out of the detention of a patient under s.3 MHA 1983 in circumstances where there was debate as to whether the nearest relative had objected, and in which Burton J gave guidance for the first time as to the meaning of the test in s.11(4)(a) of the 1983 Act; and (5) R (DB) v Nottinghamshire Healthcare NHS Trust  EWCA Civ 1354, a successful challenge in the Court of Appeal to the power of a hospital to detain under s.37 MHA 1983 where the detention did not take place within the 28 day period provided for in the hospital order. He acted (pro bono) as second junior to Nigel Pleming QC and Fenella Morris on behalf of the Claimant in the application Munjaz v United Kingdom before the European Court of Human Rights (17 July 2012), in which the Court gave guidance both as to the operation of Articles 5 and 8 ECHR in the context of detained patients facing seclusion.
As a result of his expertise in the international jurisdiction of the Court of Protection, Alex was instructed in a series of unprecedented cases relating to the placement of foreign minors in English psychiatric institutions and/or other residential settings under the provisions of Council Regulation 2201/2003. The cases resulted in an urgent reference (from the ‘placing’ EU member state) to the CJEU, and one public judgment: HSE Ireland v SF  EWHC 1640 (Fam);  2 FLR 1131.
Alex has had a long-standing interest in healthcare matters, especially those raising ethical dilemmas. He was instructed by Claimant in R (Conway) v Secretary of State for Justice  EWCA Civ 1431, challenging the ban on assisted dying in s.2(1) Suicide Act 1961. With Tor Butler-Cole QC, he acted as Advocate to Court in NHS Trust v X  EWHC 65 (Fam), the first post-HRA case to consider whether the refusal of treatment by a minor is binding. He also acted with Tor in AB v CD & Ors  EWHC 741 (Fam), again as Advocate to the Court, in which the court had to address the question whether parents can consent to the administration of puberty blockers where their minor child seeks to consent.
He is on the Legal and Ethical Policy Unit of the Faculty of Intensive Care Medicine, intervening on the Faculty’s behalf, most recently, in a judicial review challenge brought to seek to compel the Secretary of State for Health and Social Care and/or NHS England to issue triage guidance in the context of COVID-19. He has been a legal adviser to the BMA/RCP working group on decision-making in relation to clinically assisted nutrition and hydration, the RCP on prolonged disorders of consciousness and oral feeding dilemmas as well as the working parties of the Association of Anaesthetists of Great Britain and Ireland convened to produce guidance for consent, Jehovah’s Witnesses and DNACPR decision-making. He was a member of the RCLST expert group producing guidance on eating and drinking with acknowledged risks. . He sits on two clinical ethics committees, one run by a major teaching hospital, and one by a large mental health Trust. He appeared pro bono in the Court of Appeal (with Jenni Richards QC) for Patient Concern in the case of Burke v General Medical Council  QB 273.
Alex has been recognised for several years as one of the leading experts in the Mental Capacity Act 2005, being singled out as one of only two ‘star juniors’ in the Court of Protection: Health & Welfare category in Chambers 2016, a position he has held in each of the subsequent editions, and a tier 1 junior for Community Care and Court of Protection in the Legal 500.