Mental Capacity Cases

Senior Judge Hilder has further refined our understanding of the scope of the Court of Protection’s power to make injunctions.  This issue has been the subject of recent appellate level consideration in Re G (Court of Protection: Injunction) [2022] E... Read more  

Potter Rees Dolan Trust Corporation Ltd v Wl & Anor [2023] EWCOP 19 concerned the management of funds awarded in a damages claim in England to a person now habitually resident in Poland.  The case had a tangled procedural history, caused in large... Read more  

Summary  This decision provides a very clear and helpful route map through the complexities of fluctuating capacity.  The case concerned a 34 year old woman, PG, who had diagnoses of an intellectual disability in the moderate range, and autism spect... Read more  

Mental capacity – assessing capacity – whether to take contingent or anticipatory approach to fluctuating capacity   A 34 year old woman had diagnoses of an intellectual disability in the moderate range, and autism spectrum disorder. She had also re... Read more  

Summary  How should the Court of Protection should proceed in a ‘two P’ situation: i.e a situation where two individuals both appear to lack the capacity to make the relevant decisions, and where those decisions are interconnected? In HH’s case, the... Read more  

Summary In a decision handed down in February 2023, but only published in June 2023, Sir Jonathan Cohen grappled with a dilemma that occurs relatively often in practice, but has been curiously under-considered by the courts: namely what ‘communicati... Read more  

The case of A Local Authority v H [2023] EWCOP 4 concerned a young adult, H, described by Hayden J as a “natal male who now identifies as female” (and hence female pronouns are used here).   H had experienced profound trauma and abuse in childhood an... Read more  

Summary  In 2015, in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, MacDonald J provided both the then-authoritative summary of the principles to apply in assessing capacity, and a masterclass in the application of those prin... Read more  

Mental capacity – assessing capacity – whether woman had capacity to make a decision to undergo a clinically indicated procedure  A woman was a serving prisoner, a failed asylum contact, and wished no contact with her mother who was understood to be... Read more  

Summary Is depriving a person of their mobile phone depriving them of their liberty?   That was the very 21st century question confronting MacDonald J in Manchester City Council v CP & Ors [2023] EWHC 133 (Fam).  Whilst his analysis concerned th... Read more  

Summary  It is exceptionally unusual for a judge, let alone a very senior judge, actively to invite a claim to be brought against the State for systemic human rights breaches, but that could be said to be the effect of the judgment of the President ... Read more  

Sunderland City Council v Macpherson [2023] EWCOP 3.  This was an application to commit the defendant Ms Macpherson to prison for contempt of court for breaches of injunctions preventing her from publishing material about her daughter FP, the subject... Read more