Victoria Butler-Cole KC

Victoria regularly represents family members, local authorities, health authorities and the Official Solicitor in the Court of Protection and is an editor of the 39 Essex Mental Capacity report. She has extensive experience in every area of the court’s welfare jurisdiction, including disputes about care, residence, physical restraint, sexual relations, forced marriage, deprivation of liberty, and contact. 

Cases of note: 

• Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP 10 – refusal to recognise and enforce a Scottish guardianship order that purported to authorise P’s deprivation of liberty in England
• Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 – first case concerning capacity make decisions about disclosure of sexual risk information to third parties 
• Re C [2021] EWCA Civ 1527 - Appeal concerning access to sex workers by people with mental disorders
• A Local Authority v JB [2021] UKSC 52 - Represented the Centre for Women’s Justice intervening in this appeal concerning the test for capacity to engage in sexual relations
• DP v Hillingdon LBC  [2020] All ER 118 - Successful appeal concerning Article 5 and the role of s.48 MCA
• Re D [2019] UKSC 42 - Represented the Equality and Human Rights Commission intervening in this appeal concerning deprivation of liberty and 16-17 year olds
• Re Lawson, Mottram and Hopton  [2019] EWCOP 22 - Test case on the appointment of a welfare deputy
• Re B (capacity: social media) [2019] EWCOP 3 - Test case on capacity to decide to use the internet and social media

Victoria has considerable experience in cases involving lasting powers of attorney and statutory wills, both in the Court of Protection and under the inherent jurisdiction, and encompassing individuals with personal wealth and those with limited funds. She also advises in personal injury cases.

Cases of note:

• T & Anor v L & Ors (Inherent Jurisdiction : Costs) [2021] EWHC 2147 (Fam) - Costs ruling in case concerning LPAs and undue influence by family members and a paid carer
• EXB v FDZ and others [2018] EWHC 3456 QB - Advocate to the court in a personal injury case concerning capacity and financial deputies

Victoria has appeared in many of the leading cases concerning medical treatment and babies, young children and incapacitated adults. She has experience of acting as a mediator in such disputes, and is an adviser to the Medical Mediation Foundation. Her cases have involved disputes about capacity, withdrawal of treatment, the provision of experimental treatment, and people with mental disabilities who require special arrangements to receive treatment. She was instrumental in developments in the law relating to withdrawal of clinically-assisted nutrition and hydration between 2011 and 2018, including the seminal cases of W v M and Re Paul Briggs, and culminating in the decision of the Supreme Court in Re Y that applications to the court did not have to be made where families and doctors were in agreement. 

Cases of note:

• The NHS Foundation Trust v K & Ors [2023] EWCOP 57 – successfully represented the Trust seeking authority not to insert a tracheostomy, against the submissions of the family and Official Solicitor
• Manchester University NHS Foundation Trust v Verden [2022] EWCOP4 - Whether a kidney transplant was in the best interests of a young autistic man with a learning disability.
• Re E and another (minors: blood transfusion) [2021] All ER (D) 71 (Dec) - Court of Appeal judgment on the approach to best interests decisions in respect of capacitous 16 and 17 year olds
• AB v CD and others [2021] EWHC 1742; [2021] 179 BMLR 139 - Acted as advocate to the court in case concerning the ability of parents to provide consent for medical treatment for gender dysphoria
• Re X (a child) (No 2) An NHS Trust v X [2021] All ER (D) 118 (Feb) - Acted as advocate to the court in leading case on the inherent jurisdiction in respect of children who are Gillick competent/have capacity to make medical treatment decisions
• Re X (a child) An NHS Foundation Trust v MX and others [2020] All ER (D) 142 (Jul), [2020] EWHC 1958 (Fam) - Withdrawal of treatment – involvement of ethics committees
• Re AB (termination of pregnancy) [2019] EWCA Civ 1215 - Successful appeal against order permitting termination
• University College London Hospitals v KG [2018] EWCOP 29 - Provision of novel therapy to patient with CJD

Victoria has extensive experience of administrative and public law with a focus on health and social care, people with mental and physical disabilities and autism and other vulnerable groups such as prisoners. She has a creative approach to legal challenges and a breadth of knowledge and experience, which is invaluable. She recently acted pro bono with Ian Brownhill in a successful challenge to the rules on transfer to open conditions for female prisoners, and has acted in a number of Human Rights Act damages claims arising from the use of physical restraint and seclusion for children and adults with mental disorders, from Winterbourne View onwards. She is a member of the Equality and Human Rights Commission (HMRC) A panel of counsel. 

Cases of note:

• R (Seabrooke Manor Ltd) v Care Quality Commission [2024] EWHC 2203 (Admin) – represented CQC in an unsuccessful judicial review of a care home rating decision, raising issues concerning covert medication
• R (Becker) v Plymouth City Council [2022] EWHC 1885 (Admin) – represented the successful claimant in quashing the Council’s policy on funding for special guardians
• Re C [2021] EWCA Civ 1527 - Appeal concerning access to sex workers by people with mental disorders and interpretation of the SOA 2003.
• In re T (A Child) (Association of Lawyers for Children and others intervening) [2021] 3 WLR 643 - Supreme Court decision about the deprivation of liberty of children and young people.
• R (Maguire) v Blackpool and Fylde Senior Coroner and others [2020] 3 WLR 1268, [2020] EWCA Civ 738 - Application of article 2 in relation to the death of a learning disabled adult resident in a care home
• R (O) v Peterborough City Council [2016] EWHC 2717 (Admin); (2016) 19 C.C.L. Rep. 548 - Unlawful imposition of child protection plan for autistic child with eating difficulties
• R (Gordon-Jones) v SS for Justice [2014] EWHC 3997 - Successful pro bono challenge to the ban on sending books to prisoners

Victoria has worked on cases concerning community care and mental health throughout her career and has a comprehensive knowledge of the area. Her expertise in related areas such as human rights and mental capacity is invaluable, and she has advised individuals, carers, local authorities and charities on issues such as ordinary residence, s117 of the Mental Health Act 1983 aftercare, Care Act duties, community treatment for mental disorders, continuing healthcare eligibility, service reprovision and direct payments.

Cases of note:

• Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust and Another v EG [2022] COPLR 83 - Options for the deprivation of liberty of conditionally discharged MHA patients 
• R (Worcestershire County Council) v Essex County Council [2014] EWHC 3557 (Admin) - Determining residence under s.117(3) MHA 1983

Victoria is a member of the Inquest Lawyers Group and represents families in inquests, often concerning the deaths of people with mental disorders or disabilities. She also acts in related judicial review proceedings and damages claims and has been instructed as an independent expert on the Mental Capacity Act and Mental Health Act by a coroner. 

Victoria has considerable experience of regulatory and disciplinary cases including in particular High Court appeals by registrants and the Professional Standards Authority, as well as advising regulators on rules, guidance and policy. She has advised a range of regulators including the General Dental Council, the Health and Care Professionals Council (HCPC), Nursing and Midwifery Council, and General Chiropractic Council.

Cases of note:

• Professional Standards Authority for Health And Social Care v Health And Care Professions Council & Yong [2021] EWHC 52 (Admin) - Harassment and sexual motivation
• Professional Standards Authority for Health And Social Care v Health And Care Professions Council & Wood [2019] EWHC 2819 - Inappropriate relationship and undercharging
• Ireland & Anor v Health and Care Professions Council [2015] EWHC 846 (Admin) - Statutory interpretation 

Victoria is a trained mediator and an adviser to the Medical Mediation Foundation. She has experience of mediating disputes in the Court of Protection and is a keen supporter of mediation in such cases, where the relationships between the parties need to persist beyond legal proceedings.