Mental Capacity Report: End of Term Email – July 2018

Mental Capacity Report: End of Term Email – July 2018

CategoryNews Author Victoria Butler-Cole KC, Alex Ruck Keene KC (Hon), Simon Edwards, Neil Allen, Katharine Scott, Annabel Lee, Nicola Kohn Date


As foreshadowed in our July report, important developments have been taking place in the field of mental capacity, highlighted in this end of term update.

The Supreme Court pronounces on treatment withdrawal cases

In Re Y [2018] UKSC 46, the Supreme Court has given the definitive answer to a question that has been becoming increasingly pressing – when is it necessary to seek the approval of the court before Clinically Assisted Nutrition and Hydration (‘CANH’) is withdrawn from a person with a prolonged disorder of consciousness (‘PDOC’)?   In so doing it has also answered the wider question of when it is necessary to go to court before withdrawing or withholding any form of life-sustaining treatment from a person lacking the capacity to consent to or refuse such treatment. For our summary of the case and of its implications, see here.

Mental Capacity (Amendment) Bill update

For our summary of the Bill, see here; its progress can be followed here.  The Bill had its second reading in the House of Lords on 16 July.  The tenor of the second reading was well summed up in the closing speech from Lord O’Shaughnessy (Parliamentary Under-Secretary of State, Department of Health and Social Care), who noted that “[i]t has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see.”  The Bill has provoked much debate and discussion outside Parliament as well.  To help reflect that debate, we will be publishing a special report on the Bill before its first day of Committee stage in the House of Lords on 5 September.  If you would like to contribute thoughts on the Bill for the report, please email our dedicated Bill email address:

HRA claims and the statutory charge

The LAA has finally confirmed that it is possible (and how it is possible) to run an HRA claim arising out of publicly funded welfare proceedings in the Court of Protection without seeing any resulting damages swallowed up entirely by operation of the statutory charge.  For more details, see the guest post by Ragani Lindquist on the Court of Protection Handbook website here.

Electronic issue of proceedings in London

From today (30 July), the Court of Protection Central Registry (First Avenue House) will allow court users to issue section 16 (Health & Welfare) and 21A (Deprivation of Liberty) applications via email. This will bring the Central Registry in line with the Multiple Points of Entry scheme, which launched nationally on 25 June. For more details, see here.

Sir James Munby retirement

At the packed (and swelteringly hot) valedictory for Sir James Munby on 27 July to mark his retirement, eloquent and powerful tributes were paid to one of the towering figures in family law (and also a man who really, really, likes trains).  One role he has held was – to our regret – not mentioned: that of President of the Court of Protection.  It was entirely fitting that he held this role in tandem with his role as President of the Family Division, in recognition of his work both in developing the substantive law and practice in relation to those with impaired capacity.   Baker J has already paid eloquent tribute to his work in the foreword to the current edition of the Court of Protection Practice (which you can read here), and Sir James’ judgments in the field are legendary; by way of one small (literal) footnote we would add as characteristic both of his tenaciousness in defence of the Court as an independent court, and also of his style, is footnote 3 to his judgment in Re D [2017] EWCA Civ 1695 in which he noted “with weary resignation, although the responsibility for this appears to be that of the court rather than the parties, that this order, as so many others, was headed ‘In the High Court of Justice Court of Protection’. The Court of Protection is not part of the High Court, so orders made by the Court of Protection should not be headed ‘In the High Court of Justice’: see section 45 of the 2005 Act. Is it too much to hope that, ten years after the Court of Protection came into being, this simple truth might be more widely understood and more generally given effect to.”

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