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…

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…

Thank you very much to those who have been in touch about my website - it is being upgraded and should be back online by the end of the weekend.

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…

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…

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…

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…

@capacitylaw.bsky.social of 39 Essex Chambers on why a decision by Lady Hale remains the vital jumping-off point for anyone wanting to ‘do’ the Mental Capacity Act 2005 properly. A reflection on Aintree v James and best interests decision-making ⚖️ 👉 swiy.co/u6Mp #MentalCapacity

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…

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…

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…

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…

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…

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,…

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…

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…

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…

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…

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…

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…

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…

Restraint, learning disability and Seni’s Law – in conversation with Beverley Samways In this 'in conversation' with Dr Beverley Samways, we talk about the scoping review she has led on to review NHS restraint policies in relation to people with learning disabilities, in the context of Seni's Law…

39 Essex Chambers March 2026 Mental Capacity Report and walkthrough The March 2026 report is now out.  Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Senior Judge Hilder lays down her baton; attorneys and failures to consult, and a research corner on…

Is there space for clinical decision-making in relation to incapacitated adults? The CA pronounces The Court of Appeal in Townsend v Epsom & Helier University Hospitals NHS Trust EWCA Civ 195 has handed down a decision with very significant implications for all medical decision-making in relation…

Assisted dying – immediate and (potential) longer-term lessons from Jersey The Assisted Dying (Jersey) Law has been adopted by the States of Jersey.  Because of the complex relationship between Jersey and the United Kingdom, it awaits “the sanction of His Most Excellent Majesty in Council” in…

Withdrawing clinically inappropriate life-sustaining treatment – the latest Strasbourg word In light of the cases that are coming before the Court of Protection about the dividing line between treatments which are clinically inappropriate (and hence are not on the table), and treatments which are…

Assisted dying – the Isle of Man, the Ministry of Justice and fundamental human rights considerations In the context of the debates in Westminster around the Terminally Ill Adults (End of Life) Bill, a letter published on 9 February giving an update to the members of the Tynwald (the Manx…

When is a deprivation of liberty not a deprivation of liberty? The Mental Health Act 2025 and conditional discharge In 2018, in MM, the Supreme Court upheld the ruling of the Court of Appeal that neither the Secretary of the State nor the Mental Health Tribunal had the power to impose conditions…

Translating insight – in conversation with Professor Tony David In this 'in conversation with,' I talk to Professor Tony David about his new paper, Insight, the law and psychiatry: Going round in circles or playing nice?.  We talk about what 'insight' means clinically, and how law and medicine can…

Parental responsibility and confinement – the need for appellate authority continues (and a Gillick conundrum) Whilst the Supreme Court considers the Attorney General for Northern Ireland’s reference, I am being cautious about commenting about cases concerning deprivation of liberty, given my role…

Personal injury payments, deputies and charging for care costs R(CGT) v West Sussex County Council EWHC 293 (Admin) (HHJ Auerbach, sitting as a s.9 Judge)# Summary CGT (acting through his father, SGT) as litigation friend, brought a judicial review of a decision taken by West Sussex County Council…

“Third sector” deputyship – a further iteration of the requirements for appointment In Re AB (Enable & Thrive Ltd) EWCOP 11 (T3), Senior Judge Hilder, not without a certain degree of reluctance, confirmed that a trust corporation which has (corporately) no independent regulatory oversight can, in…

Attorneys, failures to consult and consequences Cwm Taf Morgannwg University Health Board v RW & Anor EWCOP 10 (T3) provides a snapshot of the realities of navigating health and welfare decision-making of a kind that rarely makes it to court.  In short compass, it concerns a failure by a hospital…

Justice and the further expert Re DA (Whether to replace a Single Joint Expert) EWCOP 7 (T2) is a decision which, as its name helpfully makes clear, is about a procedural point that sometimes arises, namely where one party to a joint instruction of an expert (here a psychiatrist) is sufficiently…

A Welsh white leopard? Litigation capacity in the absence of subject-matter capacity revisited Whether you can have capacity to conduct proceedings about a decision you lack capacity to make is a question that infrequently, but consistently, troubles the Court of Protection.  Mostyn J once…

National Mental Capacity Forum Annual Report 2023-2025 Margaret Flynn, the Chair of the National Mental Capacity Forum, has published her annual report (in fact, a double issue) for 2023-2025, drawing on both her own tireless work and that of members of the Forum.  Amongst other highlights,…

Overwhelming desires and capacity – in conversation with Dr Joe Gough In this 'in conversation' with Dr Joe Gough, we discuss some of the fruits of his British Academy Postdoctoral Fellowship at the University of Oxford looking at legal and medical assessments of decision-making capacity, how they…

39 Essex Chambers February 2026 Mental Capacity Reports The February 2026 Mental Capacity Reports are now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: two tributes following recent deaths of MCA champions, and best interests in the balance; (2)…

The Terminally Ill Adults (End of Life) Bill – a briefing on eligibility As the House of Lords continues at Committee stage to consider eligibility, members of the Complex Life and Death Decisions Group (together with Dr Rob Elias, a nephrologist at King's College London) have produced a briefing…

The Terminally Ill Adults (End of Life) Bill and capacity In light of the fact that it appears likely that questions of capacity will be considered imminently by the House of Lords at Committee stage, I hope that it may be of some assistance if I pulled together some of the materials on this issue…

Cannabis, criminality and capacity – a Jersey perspective In the Capacity and Self-Determination Law 2016, Jersey has a framework which looks a great deal like the Mental Capacity Act 2005; the Jersey courts look to the caselaw in England & Wales to help them navigate some of the dilemmas that…

Advance decisions to refuse treatment – updated guidance note I have updated my guidance note on advance decisions to refuse treatment under the Mental Capacity Act 2005 to take account of cases since 2020.  My shedinar on advance decision-making more broadly (and the related but entirely…

If you do not know you are doing wrong, can you sue for not being prevented from doing it? – the Supreme Court pronounces The Supreme Court has allowed the appeal of three of the relevant public bodies in the Lewis-Ranwell case, concerning the effect in civil law of a determination for criminal…

Nearest relatives – the law and the reality: in conversation with Nick Robinson, Judy Laing and Jeremy Dixon In this 'in conversation with,' I talk to Nick Robinson, Professor Judy Laing, and Dr Jeremy Dixon about the website that they have recently been involved in setting up providing resources…

New 39 Essex Chambers website, but same mental capacity resources! My Chambers have launched a new and zippy version of our website.  But don't worry, all the content that you might need - our Reports, our case-law summaries, and our guidance notes - can all still be found via here. We know…

Supporting the legal capacity of all persons with disabilities – in conversation with János Fiala-Butora In this 'in conversation with,' I talk to the lawyer and academic Dr János Fiala-Butora about his new book, Implementing the Right to Decide under the Convention on the Rights of Persons with…

Personal welfare deputies, principle and pragmatism In Parr v Cheshire East Council & Anor EWCOP 1 (T3), and whilst expressly applying, rather than seeking to distinguish Lawson and Mottram, Poole J took a rather different approach to the question of principle underpinning the issue of when a…

Sir James Munby The sense of shock amongst lawyers and others concerned with the rights of children and those with impaired decision-making capacity at the announcement of the sudden death on New Year's Day of Sir James Munby is palpable.  I share it.  I was, the morning I learned of it, writing a…

January 2026 capacity mini-update We do not publish a January Mental Capacity Report, but there have been a number of relevant developments meriting brief mention ahead of their fuller treatment come February. The Court of Protection published several judgments in the immediate run up to…

Psychiatry and human nature – in conversation with Professor Gareth Owen In this 'in conversation with,' I talk to Professor Gareth Owen about his new book Psychiatry and Human Nature: Classic and Romantic Perspectives, and he helps unpack what 'classic' and 'romantic' mean in this context, moving…