Mental capacity end of term report

The court term in England & Wales ends today, 31 July 2026.  Whilst this does not mean that the Court of Protection (or indeed the other courts) stop hearing cases, it does mean that there may now be a lull in what has been an exceptionally busy period for those concerned with mental capacity matters.   We do not have an August Mental Capacity Report (for the July one – with huge thanks to Arianna Kelly for taking this on in my absence – see…

mentalcapacitylawandpolicy.org.uk

Book reviews: Research Handbook on Medical Consent and Scottish Medical Essentials (Second Edition)

José Miola and Louise Austin (eds) Research Handbook on Medical Consent (Elgar, 2026, 485 pp, hardback £240 / ebook c£48) Having spent a significant amount of time recently working with the Association of Anaesthetists on their (imminently arriving) updated guidance on consent, I re-read this book with particular interest.  Albeit not necessarily in that order, chapters in this book enable interrogation of the entire consent process which (in one specific area) that guidance seeks to cover: from consideration of how doctors are to formulate what options to put to patients, to the theory, purpose and practice of relaying material information to their patients, and to negotiation with patients about their choices.

mentalcapacitylawandpolicy.org.uk

Updated AGNI resources page (and over and out for now)

I have updated my resources page on the AGNI case to include, amongst other things, a link to the recording of the webinar held by the National Mental Capacity Forum on 24 June, and guidance from both the DHSC and the Northern Ireland Department of Health. I am now signing off social media until 20 July so (as I say to my children when I go out) please try not to do anything too awful when I am away.

mentalcapacitylawandpolicy.org.uk

Terminally Ill Adults (End of Life) – updated Complex Life and Death Decisions briefing

On 14 June 2026, Lauren Roberts MP announced that she would use her position (second) in the Private Members Ballot to re-introduce the Terminally Ill Adults (End of Life) Bill.  It appears from her announcement that she intends to bring back the Bill introduced by Kim Leadbeater MP (which I will refer to here as the “Leadbeater Bill” for speed).

mentalcapacitylawandpolicy.org.uk

Capacity: the court and the expert, and the ‘reasons burden

In one of what is likely to be one of her last decisions as a Tier 3 judge (having very recently been appointed a Court of Appeal judge), Lieven J considered a very complex situation in London Borough of Camden v BW & Anor (Capacity Decisions; Reasons) EWCOP 26 (T3).   At its heart were two questions as to the capacity of the young woman, BW: (1) to make decisions about taking psychotropic medication;

mentalcapacitylawandpolicy.org.uk

Terminally Ill Adults (End of Life) Bill – updated resources page

On 14 June 2026, Lauren Roberts announced that she would use her position in the Private Members Ballot to re-introduce the Terminally Ill Adults (End of Life) Bill.  It appears from her announcement that she intends to bring back the Bill introduced by Kim Leadbeater MP.  I have therefore updated my resources page to enable Parliamentarians (and others) to refresh their memories in relation to that earlier Bill. 

mentalcapacitylawandpolicy.org.uk

AGNI – resources page, podcast and shedinar video

I have started a resources page on the AGNI case, and will start to populate it as more guidance and the like emerges.  The page includes links to a shedinar video that I have recorded about deprivation of liberty after the case, and also a podcast recorded with Community Care, which talks more broadly about the case.

mentalcapacitylawandpolicy.org.uk

39 Essex Chambers June Mental Capacity Report – and AGNI

The June 2026 Mental Capacity Report is now out. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: coverage of ‘year zero’ as regards deprivation of liberty following the AGNI case (the 'rapid reaction' webinar held on the day the judgment was handed down can be found here). In the Property and Affairs Report…

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Supreme Court overrules Cheshire West

In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 UKSC 16, a seven member Panel of the Supreme Court has unanimously overruled the 2014 majority decision in Cheshire West.   The judgment is long and detailed.  A summary by the Supreme Court can be found…

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Position statements, transparency and the Court of Protection

The Court of Appeal has allowed the appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) EWCOP 25 (T3) and made clear that the guidance given in that judgment about providing position statements to observers should not be followed.  In Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) EWCA Civ 640, Sir Stephen Cobb, the new President of the Court of Protection, giving the lead judgment provided a summary of his conclusions as follows at paragraph 12.

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The contact constraints on the Court of Protection

The issue of visiting in care homes is a distinctly hot topic at the time of writing (May 2026).  Linked, it appears, to high profile media coverage, DHSC has announced a review of Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, itself introduced in England in the wake of the pandemic.  Regulation 9A does not, however, apply to judges making decisions in the Court of Protection.

mentalcapacitylawandpolicy.org.uk

39 Essex Chambers May Mental Capacity Report

The May 2026 Mental Capacity Report is now out. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: Townsend updated, sex before the Court of Protection again, and a profoundly disturbing report on dementia in acute hospitals; In the Property and Affairs Report: new OPG investigation requirements and the consequences thereof; In the Practice and Procedure Report…

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Gretna Green and children’s capacity – in discussion with Jonathan Brown

In the latest 'in conversation with,' I talk to Dr Jonathan Brown about the very different approach to the decision-making authority granted children in Scotland, prompted by his article arising out of this case decided in Scotland just before Christmas 2025.  The discussion hopefully serves both to alert people to the fact that they should not assume that things are the same either side of the border, to start to think about why this might be the case, and what this might suggest in terms of law reform. 

mentalcapacitylawandpolicy.org.uk

Instructing experts, and how long does the leash have to be for the acid test to be satisfied?

Bristol City Council v CC & Ors  EWCOP 19 (T3) is both an important and an interesting decision.  It is important because Theis J set out a clear set of expectations instructing experts, and interesting because it is an example of what is now a rare beast, a contest as to whether circumstances gave rise to a deprivation of liberty.   It also includes what is now an increasingly standard reminder that dividing care and residence decisions can frequently be artificial.

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Revisiting habitual residence – when and how the Court of Protection can do so

The case of Neath Port Talbot Country Borough Council v CK & Ors EWCOP 47 (T3) is the sequel to this decision, in which HHJ Miller set out a helpful worked example of determining whether a person’s habitual residence has changed following a loss of capacity, and where the move has not been at the behest of professionals, but family members. 

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Book review: Coercive Control and Vulnerable Adults: Law and Practice under the Court of Protection and the Inherent Jurisdiction of the High Court

Book Review: Oliver Lewis, Coercive Control and Vulnerable Adults: Law and Practice under the Court of Protection and the Inherent Jurisdiction of the High Court (Bloomsbury, 2026, 242 pp, hardback / ebook, £48.60) If I have done one useful thing in the past few years, it was to have a conversation with the barrister (and CRPD specialist) Dr Oliver Lewis…

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Court of Protection Handbook – April 2026 update

The quarterly update to the Court of Protection Handbook is now up, covering such matters as the flurry of cases concerning personal welfare deputies, disclosure of position statements, and the new arrangements for securing pro bono representation before the Court of Protection.

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39 Essex Chambers April 2026 Mental Capacity Reports

The April 2026 Mental Capacity Report.  It takes a different form to normal as our (over) commitments means that we cannot do more than provide an overview of some key matters, with more to follow (where necessary) in May.  We do, however, have a bumper Scotland Report to make up for the lack of such a Report last time – and we would, commend the Scotland report to readers from other jurisdictions as it contains both comparative matters of interest, and research of wider reach than just Scotland.

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The Terminally Ill Adults (End of Life) Bill – discrimination and distortion

I have set my (excellent) Law at the End of Life students on the Medical Law MA programme at King's College London the following question: "Do the eligibility criteria for assistance in dying contained in the Terminally Ill Adults (End of Life) Bill give rise to discrimination contrary to Articles 8 and 14 ECHR?  Give reasons for your answer.

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The COVID-19 inquiry – two key healthcare recommendations

I have not written much about the COVID-19 inquiry on this site.  In part this is because, having been very heavily involved seeking to support clinicians and others trying to maintain some form of functioning health and social care system (and having been involved in the 'real time' inquiry conducted by the JCHR at the time), I frankly could not face going back over history. 

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An ‘intolerable’ deprivation of liberty – and the need for reasons

No one will ever entirely fill the shoes of the late Sir James Munby, one of whose defining characteristics was a willingness to speak truth unto power, especially when it came to those who could not speak for themselves.  However, notwithstanding his untimely death, it is important to see that there remain judges who are willing to call out entirely unacceptable situations. 

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Capacity as a social construct, and the problem of untangling the spider’s web

Many, including, me, who read the judgment of Poole J in SW v Nottingham City Council & Anor  EWCOP 53 (T3) were very interested to see whether there would be a published sequel.  That judgment concerned a (rather complicated) situation in which findings of fact had been made ahead of the court’s determination of capacity, a course of action that Poole J indicated that he was not entirely convinced by. 

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Switzerland and the Terminally Ill Adults (End of Life) Bill – how many would still travel?

One point quite often lost in the debate about the Terminally Ill Adults (End of Life) Bill is as to the numbers of those who might still need the feel to travel to Switzerland were it to pass.  In this regard, it is perhaps of interest to recall a paper published in 2025 which sought to estimate, using the data of the three Swiss providers to non-residents, the numbers who would fall outside the 6 month prognosis requirement contained in the Bill, and which is a central plank of its approach (see, for instance, the…

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Family Help, Early Help and the myth of ‘non-statutory support’

The Department for Education has published an updated version of Working Together to Safeguard Children (‘Working Together’), the statutory guidance on multi-agency working to support and protect children in England.  It is a very important, wide-ranging document, but  I want to focus here on one aspect of the guidance that reflects – I suggest – a profound and troubling misunderstanding of the law. 

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Assisted dying and Article 2 ECHR – a self-imposed dilemma (and an update on delegated powers)

Assisted dying and the duty to secure life under Article 2 ECHR With grateful thanks to the Socio-Legal Studies Association for the invitation, I have contributed a blog to their series on the Terminally Ill Adults (End of Life) Bill, in which I sketch out an issue which has been the subject of (arguably far too) little consideration to date, namely the way in which the TIA Bill interacts with the state's duty to secure life under Article 2 ECHR, in particular mediated through the Mental Health Act 1983. 

mentalcapacitylawandpolicy.org.uk

Personal welfare deputies – Lawson and Mottram strikes back?

Personal welfare deputyship cases are like buses – you wait ages, and then three come along all at once.  After a period when, at least on the surface, we thought that the parameters of the appointment of personal welfare deputyship had been clearly delineated by the former Vice-President, Hayden J, in Lawson and Mottram, the decision of Poole J in…

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Personal welfare deputies, the Court of Protection and Article 8 ECHR

Re XY EWCOP 55 (T2)[1] is an important decision about the powers of welfare deputies.  The specific facts of the case are somewhat complicated, and not of direct relevance for present purposes.  As HHJ Hilder emphasised at paragraph 44: The basic legal framework for welfare decision making is the collaborative decision-making process set out in sections 1, 4 and 5 of the Act, which operates defensively.

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Adult safeguarding, Dame Louise Casey and gaps in the law

Dame Louise Casey, leading an independent commission into adult social care, has recently (3 March) written to the Secretary of State for Health and Social Care, asking for immediate action on safeguarding, dementia and motor neurone disease.  In relation to the former, she has asked that the DHSC: Lead an urgent review of existing adult safeguarding statutory duties and powers, to test whether the current framework provides sufficient clarity and leverage in high-risk situations.

mentalcapacitylawandpolicy.org.uk