Wishing won’t make it so – urban myths around s.4B MCA 2005 I was contacted, again, by a health care professional who had been told with complete confidence that the new version of s.4B MCA 2005 included in the Mental Capacity (Amendment) Act 2019 was in force.  This, in turn, meant that they had…

Anticipating the reasonableness of responses – time-specific capacity in action Darlington Borough Council v AW & Ors EWCOP 33 (T3), decided in August 2025, but only published more recently, is another in a now near-continuous stream of cases grappling with complexities of applying the…

The Court of Protection: a Welsh language primer in key caselaw TIRE v Carmarthenshire County Council EWCOP 81 (T2) is, as far as I know (but we would welcome correction) the first published judgment from the Court of Protection in Welsh (although many will have been delivered orally).  As this…

Disabled Children’s Social Care – a walkthrough of the recommendations The Law Commission’s Disabled Children’s Social Care project – on which I was a consultant – published its final report on 16 September.  Having now partially reclaimed the shed from its use as a furniture store, I have done a…

Court of Protection Handbook 5th edition – and updated website The new (2025, 5th) edition of the Court of Protection Handbook is now available, and accompanying website has been updated (not least to reflect the new jazzy green cover). Amongst other delights are: (1) an updated sample chapter (5)…

The Terminally Ill Adults (End of Life) Bill is not good law – a briefing on the problems and how to fix them As some may know, I am a member of the Complex Life and Death Decisions Group (CLADD).  CLADD is a King’s College London based group with expertise in psychiatry, palliative care,…

Disabled Children’s Social Care – Law Commission final report now published The recommendations in our report provide a comprehensive set of reforms to disabled children’s social care law. The reforms we recommend represent the most substantial change to this area of law since the Children Act…

Law Commission 14th programme of law reform – and a vulnerable adults project on the horizon? The Law Commission of England & Wales published its 14th programme of law reform on 4 September - i.e. its proposed plan of work for the years ahead.  It includes ten new projects (alongside existing…

39 Essex Chambers Mental Capacity Report September 2025 (and walkthrough) The September 2025 Report is now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an update on Cheshire West 2, non-withdrawal of treatment in two very different contexts and…

SCIE sounds the alarm on MCA reform The Social Care Institute for Excellence is not normally an alarmist body, which makes its recent (26 August 2025) statement on MCA reform all the more striking.  I reproduce the material sections below: Failure to act on long-delayed reforms to the Mental…

“There are more things in heaven and earth that are dreamt of in the philosophy of NHS treatment” – a Court of Protection story The flipside of the intense focus on the wishes, feelings, beliefs and values of the person required by s.4 MCA 2005, as clarified by the Supreme Court in Aintree v…

When does a Court of Protection order do more harm than good? Anorexia, the Court of Protection, and the ‘impossible burden’ Patricia's Father & Ors v Patricia & Ors EWCOP 30 (T3) is a challenging case at a number of levels, over and above the human tragedy at the centre of it. Procedurally, it…

Gillick is not a universal test – an important clarification from the Court of Appeal For years, lawyers and clinicians have thrown around the term ‘Gillick competence’ as if it were a universal test to apply to analyse the decision-making abilities of children.  More recently,  they have largely…

Tracking down the abducted ‘P’ – a menu of options for Court of Protection practitioners The Court of Protection on occasion has to deal with those who are determined to stymie its jurisdiction.  In Kirk v Devon County Council EWCA Civ 34, Sir James Munby, through gritted teeth, accepted that the…

Anorexia, the Mental Health Act and the Court of Protection – a clear route map for cases In Leeds and York Partnership NHS Foundation Trust v FF & Anor EWCOP 26 (T3), McKendrick J made some very helpful observations about how the courts should proceed in a case where clinicians are seeking…

The Court of Protection (Amendment) Rules 2025 These Rules were laid before Parliament on 15 July, and come into force on 1 October 2025.  They make a number of changes in relation to committal proceedings, especially to pick up the problems identified by Poole J in Esper v NHS North West London…

39 Essex Chambers July Mental Capacity Report now out – and walkthrough The July 2025 Mental Capacity Report is now out.  Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: what to do when an advance decision to refuse treatment may be in play, and the…

Joint Committee on Human Rights inquiry into the human rights of children in the social care system The Joint Committee on Human Rights has announced an inquiry into the human rights of children in the social care system.  It will have a particular focus on children in care but wider aspects of…

Providing observers to Court of Protection proceedings: vital guidance from Poole J Re AB (Disclosure of Position Statements) EWCOP 25 (T3) concerns a question of increasing importance given (in particular) the sterling work of the Open Justice Court of Protection Project: namely when and how can…

Disordered eating and the gaps between services – the consequences for the Court of Protection Cwm Taf Morgannwg Health Board v AB & Anor  EWCOP 24 (T3) is a judgment about case management in a very difficult case involving a 17 year old with profoundly disordered eating.  As CD, the mother of AB,…

Habitual residence, moving jurisdictions and ‘lawful authority’ In Re A (Habitual Residence) EWCOP 22 (T2), HHJ Millar 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…

Capacity in the rear view mirror – how does the presumption work? The problem of the retrospective consideration of capacity troubled Costs Judge Whalan in Furley Page LLP v KFL EWHC 1703 (SCCO).  The question arose in relation to the detailed assessment of costs due by the defendant (a…

The Terminally Ill Adults (End of Life) Bill and the NHS 10 Year Plan This can be a very short post.  Those reading Fit for the Future: 10 Year Health Plan for England published on 3 July 2025 with an eye to understanding how the Terminally Ill Adults (End of Life) Bill will impact upon it will do…

Reposting this from last year as this issue keeps coming up: why thinking about capacity in the abstract is usually so unhelpful: www.mentalcapacitylawandpolicy.org.uk/capacity-to-...

Cross border mental capacity frameworks: new joint information note from the Law Societies of Scotland and England & Wales In a coincidence of timing (both projects having been started and running independently, albeit with two common joint participants ), the recent publication of the new pan-UK…

Text for @LegalActionGrp Court of Protection Handbook 5th edition off to typesetters today - onwards and upwards, and thank you to the brilliant (and expanding) team of contributors! courtofprotectionhandbook.com

Terminally Ill Adults (End of Life) Bill update and updated questions The Terminally Ill Adults (End of Life) Bill had its First Reading (a formality) in the House of Lords on 23 June 2025.  No date has yet been set for Second Reading.  The current version of the Bill, brought from the House of…

The importance of complying (and showing you’ve complied with) the procedural protections of the Mental Health Act 1983 As Deputy Master Marzec put it at the start of her judgment in Appiah & Anor v Leeds City Council & Anor EWHC 1537 (KB): 1. This claim concerns the detention of the First…

39 Essex Chambers June 2025 Mental Capacity Report With huge thanks to Arianna Kelly for editing this in my temporarily incapacitated state, and apologies that technical issues means that this has come out a bit late, the June report is now out. Highlights this month include: In the Health,…

Mental capacity and the Terminally Ill Adults (End of Life) Bill Given the centrality of the concept of mental capacity to the Terminally Ill Adults (End of Life) Bill, it is, I have to confess, troubling that there still seem to be so many myths out there about the concept, and how it applies.  I…

Terminally Ill Adults (End of Life) Bill – what do expert bodies say? (And remember Jersey) I have updated my resources page on the Bill to include the most recent statements from expert bodies that I can find (if I have missed any, do please contact me at [email protected]).…

The Court of Protection and the ‘slip rule’ – a clarification of the procedures Rule 5.15 of the Court of Protection Rules provides that: “The court may at any time correct any clerical mistakes in an order or direction or any error arising in an order or direction from any accidental slip or…

Advance decisions to refuse treatment – what (not) to do when it appears one may be in play: www.mentalcapacitylawandpolicy.org.uk/advance-deci...

Compulsory mental health admission and treatment – the latest Strasbourg word: www.mentalcapacitylawandpolicy.org.uk/compulsory-m...

Terminally Ill Adults (End of Life) Bill updated with amendments likely to pass at Report stage, and updated questions: www.mentalcapacitylawandpolicy.org.uk/terminally-i...

Mental Health Bill Public Bill Committee call for evidence: www.parliament.uk/business/new...

Law Commission Modernising Wills project reports: www.mentalcapacitylawandpolicy.org.uk/law-commissi...

An important reminder that it is the judge who has the final say as to best interests: www.mentalcapacitylawandpolicy.org.uk/an-important...

Terminally Ill Adults (End of Life) Bill - updated positions of key bodies and corrections to impact assessments: www.mentalcapacitylawandpolicy.org.uk/terminally-i...

To celebrate 150 issues of the 39 Essex Chambers Mental Capacity Report, @torbc.bsky.social and I recorded a chat about where we've come from in the Court of Protection, and where we might be going: vimeo.com/1078633857

39 Essex Chambers May 2025 Mental Capacity Report – issue 150! www.mentalcapacitylawandpolicy.org.uk/7661-2/

Ahead of the Report stage on 16 May in Westminster, I have updated and expanded my Terminally Ill Adults (End of Life) Bill resources page, available here: www.mentalcapacitylawandpolicy.org.uk/terminally-i...

Litigation capacity – and what happens if you never had it? www.mentalcapacitylawandpolicy.org.uk/litigation-c...

Book Review: Rob George: Wards of Court and the Inherent Jurisdiction: www.mentalcapacitylawandpolicy.org.uk/book-review-...

This morning has mostly been spent reading fascinating, thoughtful and nuanced answers to the question “is assisted dying progressive”. Thank you to my Law at the End of Life students at KCL.

Reflections on the Terminally Ill Adults (End of Life) Bill podcast (x2) – Mental Capacity Law and Policy: www.mentalcapacitylawandpolicy.org.uk/reflections-...

Cross-border capacity cases within the UK: a new judicial protocol and handbook: www.mentalcapacitylawandpolicy.org.uk/cross-border...

Terminally Ill Adults (End of Life) Bill developments / resources: www.mentalcapacitylawandpolicy.org.uk/terminally-i...

The impact assessments (from DHSC and MOJ) for the Terminally Ill Adults (End of Life) Bill have been published: bills.parliament.uk/bills/3774/p...

The Court of Appeal explains why local authorities cannot consent to the confinement of children in their care: www.mentalcapacitylawandpolicy.org.uk/the-court-of...