Mental Capacity Resource Centre

Summary[1] T was 25 with diagnoses of autism, ADHD, a speech and language disorder and personality disorder. In October 2024 his solicitor wrote to the local authority about his long-standing difficulties with relationships and sexual boundaries, and asked for input from a psychologist and from learning disability and autism specialists. The Care Act needs assessment completed on 13 December 2024 recorded that “T lacks capacity in understanding relationships/sexual relationships and boundaries of relationships,” although this information came from the placement provider; the assessor had not assessed capacity herself (paragraph 19). The legality of the Care Act assessment was challenged principally [...]

Summary[1] In Lumb v NHS Humber & North Yorkshire ICB [2024] EWCOP 57 (T2), HHJ Hilder held that managing direct payments under the National Health Service (Direct Payments) Regulations 2013 did not fall within the ‘general authority’ of a property and affairs deputy, because complying with those Regulations required some decisions of a welfare type to be made.  She held that the Court of Protection could confer authority to manage such payments, but that authority would have to draw on both the welfare and the property and affairs ‘streams’ of its jurisdiction. Those who hoped that Lumb would turn out [...]

Summary HHJ Burrows has handed down the most comprehensive first instance ‘run’ at AGNI to date, AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2), concerning (as he identified at paragraph 1): a young man I shall call AR. He is diagnosed as suffering from moderate to severe learning disability and autistic spectrum disorder. He is a man of 25 years who lived for most of his life with his parents. However, since May 2025, AR has lived in a placement, initially by way of respite care, but now on a more permanent footing. Although there [...]

Summary This decision of Master Clark, given in a probate claim with a “long-running and bitterly acrimonious history,” is an important reminder of two things: (1) the limits of the Court of Protection’s jurisdiction over wills that P has already made; and (2) the limited status of findings made by the Court of Protection in subsequent proceedings. Mr Thorpe suffered a stroke in 2017. In 2021, he went to live with his daughter, the claimant, and subsequently granted LPAs for property and affairs and health and welfare in favour of the claimant and her two daughters. He also made a [...]

Summary FHR, aged 28, sustained a catastrophic hypoxic brain injury in January 2020 when he tried to hang himself. He had been in a prolonged disorder of consciousness ever since: cortically blind, mostly paralysed, PEG-fed, with a cuffed tracheostomy requiring deep suctioning every half hour, daily digital rectal evacuation and worsening contractures.  He was cared for at his adapted home by an ICB-commissioned package from August 2020 until April 2025, when – in the third set of Court of Protection proceedings about his residence and care since December 2020 – he was moved on an interim basis to a care [...]

Summary Sixteen months after the application for recognition and enforcement of RF’s Scottish guardianship order foundered in Argyll and Bute Council v RF [2025] EWCOP 12 (T3) (‘RF(1)’), the council returned with a new order and succeeded. Although by the time of the hearing the Official Solicitor supported the application, Theis J considered it important to set out why the second attempt succeeded where the first had failed. RF, aged 65, had a learning disability and a personality disorder. Born and raised in Scotland, where his two siblings still live, he had been at a placement in London since December [...]

Summary CW, aged 33, had emotionally unstable personality disorder, cognitive deficits and epilepsy. In December 2022 Scottish Borders Council placed her in a care home in Hartlepool under a three-year welfare guardianship order made by Jedburgh Sheriff Court. The placement was intended to be temporary whilst alternative placements closer to home were being sought. No application was made to recognise and enforce the order under Schedule 3. When the care home sought a DoLS authorisation in February 2023, Hartlepool initially rejected the request because it had not placed CW but ultimately granted a standard authorisation in March 2023 and a [...]

Summary In this case HHJ Rogers has added to the growing jurisprudence on capacity to engage sex in the post JB era – specifically, where capacity is contingent on P’s ability to assess the consent of a prospective partner. The application in this case was brought by the local authority – with support from the relevant healthcare trust – to determine LM’s capacity to engage in sexual relationship and to consent to the sharing of information in respect of sexual offences. The parties otherwise agreed that he lacked capacity in relation to litigation, care, residence, contact with others and internet [...]

Summary The issue in this case was crisply summarised by Bacon J in the opening paragraph: “[t]his hearing concerns the latest development in a long-running family feud between members of the Hinduja family. The issue before the court is whether documents disclosed into the Court of Protection proceedings concerning the late Srichand Parmanand Hinduja (SP) should now be permitted to be used in other actual or contemplated proceedings, and if so on what terms.” Much of the decision is concerned with (necessary) micro-analysis of specific documents / classes of documents and whether they were covered by specific orders and /or [...]

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 [...]