Francesca Gardner

Francesca regularly advises and appears in medical treatment cases. Francesca also routinely takes instructions and has extensive experience in out-of-hours urgent applications.

Francesca appears and advises in a range of medical treatment cases, Francesca has particular experience in cases involving the treatment of adults detained under the Mental Health Act 1983, and cases where a determination is required as to whether the proposed treatment can be provided under the provisions of the MHA 1983, or whether separate court authorisation is required and/or whether the court determination is required as to the lawfulness of a decision to no longer provide life sustaining treatment.

Francesca has appeared in a number of reported and significant cases in this area:

• E & F (Minors: Blood Transfusion) [2021] EWCA Civ 1888: Francesca appeared for the health trust in the significant Court of Appeal decision, considering the extent to which the court can override the wishes of a 17 year old young person, in relation to their medical treatment and religious beliefs.
• Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46: Francesca represented the sister of the protected party in a very difficult and complex case involving an application for withdrawal of life sustaining treatment. The case focussed, in particular, on the weight to be afforded to an adult’s religious beliefs.
• Kings College Hospital NHS Foundation Trust v South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20: Francesca represented the health trust in an application for declarations and orders authorising clinicians to perform an above knee leg amputation, against P’s wishes, to save his life.
• Nottinghamshire Healthcare NHS Foundation Trust v MC [2025] EWHC 920 (Fam): Francesca represented an acute Hospital Trust in this significant case, in which the court considered whether the treatment for diabetes falls within the scope of s.63 of the Mental Health Act 1983.
• University Hospitals Birmingham NHS Foundation Trust v EN [2025] EWCOP 59 (T3): Francesca represented the patient (through her litigation friend, the Official Solicitor), in this difficult matter concerning an application for the patient to undergo a forced c-section, to ensure the safe delivery of her baby. The Judgment is highly critical of the way in which the Trust brought the application, and is crucial reading for practitioners in this area.
• The Rotherham NHS Foundation Trust v NP & Anor [2026] EWCOP 27 (T3): Francesca appeared for the applicant hospital trust in this long running case concerning the cancer treatment of a woman with paranoid schizophrenia and a strong objection to treatment.

Francesca routinely advises on complex financial cases, including cases flowing from, or overlapping with personal injury or clinical negligence claims.

Francesca regularly receives instructions from a broad range of clients in property and affairs work including: the Official Solicitor; professional and lay deputies; family members and public bodies.

Francesca has particular interest and expertise in cases involving the following: statutory wills; the appointment of deputies; the scope of the authority of a deputy; financial abuse; lasting powers of attorney and gifts.

In SAD & Anor v SED [2016] EWCOP 3: Francesca represented the daughters of P in the first post-MCA case to consider the issue of capacity to revoke a lasting power of attorney (LPA). P decided with capacity to appoint her daughters under an LPA. The evidence before the court indicated that the LPA was executed to guard against the financial consequences of hypomania resulting from her bipolar disorder. P revoked the LPA, and this was challenged by the daughters. The court gave helpful guidance as to the information relevant to the decision to revoke an LPA.

Francesca routinely advises in proceedings flowing from or related to personal injury proceedings. Francesca has recently advised on the management of a damages award for a prisoner that lacks capacity to manage the award and the management of a damages award for a young man seriously injured in a road traffic accident. Francesca has extensive experience advising in relation to personal injury and clinical negligence claims that require consideration of applications to be made in the Court of Protection in circumstances where the protected party lacks capacity, including applications to authorise any deprivation of liberty arising from the care package.

Francesca advises and represents professional deputies in relation to a range of complex matters including applications for authority to execute a statutory will in complex circumstances, suspected financial abuse, service outside of the jurisdiction, fraudulent activities of a charity and applications to dispense with service.

Francesca provides regular training in this area and has experience of providing training events and seminars to practitioners, including public bodies and professional deputies.

Cases of Note

• SAD & Anor v SED [2016] EWCOP 3
• Re KC [2020] EWCOP 62

Francesca regularly advises and acts in claims under the Human Rights Act 1998. Francesca as recently advised and represented the claimants in two significant and successful claims for declaratory relief and damages arising from breaches of Article 5 and 8 of the European Convention on Human Rights. Francesca recently successfully secured a settlement figure in excess of £150,000 in a claim for unlawful detention.

Francesca acts in claims for vulnerable adults and children. Francesca routinely advises and acts in claims relating to children with particular focus on breaches of the ECHR while children are placed in the care of a local authority under various provisions of the Children Act 1989, or in circumstances where it is alleged that a local authority has failed to take protective action.

Francesca receives regular instructions in inquest work, and has acted as counsel in a significant variety of inquests. Francesca’s other practice areas compliment this area of work, as such she regularly appears in inquests relating to deaths that have occurred in the context of health and social care and matters relating to the Mental Health Act 1983. Francesca has broad experience in this work, acting for both public bodies and family members.

Cases of Note

• Inquest touching upon the death of FH – Inquest into the death of an elderly woman in a care home, who was subject to a standard authorisation under Schedule A1 Mental Capacity Act 2005, at the time of her death.
• Inquest touching upon the death of DJ- Inquest into the death of a man who died whilst detained under the Mental Health Act 1983, in a secure hospital.
• Inquest touching upon the death of FK- Inquest of a man who jumped to his death from a bridge following a number of requests for professional help from mental health and social care services.
• Inquest touching upon the death of RV- Death of a man whilst in police custody, having been discharged from detention under the MHA 1983, shortly before his death.
• Inquest touching upon the death of GH- death of a woman in her own home following severe neglect.

Francesca is a qualified mediator. She mediates cases spanning the full range of her practice, including all areas of Court of Protection work and civil claims arising from disputes in relation to the use of and distribution of a vulnerable adult’s assets. Francesca accepts instructions in all areas of mediation, with a particular focus on her specialist areas of practice, mental capacity and mental health law and civil claims arising out of the same.

Francesca acts in a wide range of safeguarding matters, both in relation to children and adults. Francesca routinely advises public bodies on safeguarding mattes, including safeguarding adults reviews. Francesca has extensive experience of advising in relation to safeguarding in the context of charities, and the Charity Commission.

Francesca has extensive experience in acting in safeguarding matters that lead to proceedings under the Inherent Jurisdiction of the High Court, examples of cases are:

• Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam)

Francesca specialises and has longstanding experience in community care and mental health law matters. Francesca was previously appointed to the Mental Health Panel of accredited representatives and regularly appears before the First Tier Tribunal and advises in relation to complex mental health matters, with a particular focus on cases involving an overlap between Mental Health Law and Mental Capacity Law.

Francesca regularly advises on community care matters, including cases relating to children and vulnerable adults.

Francesca contributed to Patterson & Karim on Judicial Review (Third Edition, 2019) Healthcare Chapter.