Re RS (Best Interests: Surgery and Intensive Care) EWCOP 38 (T3) is a case which demonstrates the care and thought which – rightly – should go into ensuring that those with cognitive impairments are put forward for appropriate physical procedures, and also contains some very helpful wider observations about the role of the courts in such cases. The person concerned was RS, a 18 year old man with a complex range of physical and cognitive impairments. 

The November 2025 Mental Capacity Report is now out.  Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Cheshire West 2, the return of LPS and where the buck stops with termination; (2) In the Property and Affairs Report: accessing Child Trust Funds and LPA fee increase; (3) In the Practice and Procedure Report…

Following on from my evidence to the House of Lords Select Committee considering the Terminally Ill Adults (End of Life) Bill (see here), I have recorded this which seeks to dig further into the complexities around capacity, decisions to end one's own life, and the implications for the Terminally Ill Adults (End of Life) Bill, in particular as regards the positive obligations imposed on the State by Article 2 ECHR.

In this 'in conversation with,' I talk to Professor John Coggon about his - deliberately! - provocative new paper Is Mental Capacity Law Law?.  We think about what 'law' means in this context, and what judges are doing in legal terms when they are judging in the Court of Protection.  And I charge John with nihilism... The paper that I mention towards the end by Bernadette Wren is this one: Can the courts be viewed as an appropriate vehicle to settle clinical unease?

In Nottinghamshire County Council v SV & Anor EWCOP 37 (T3), Lieven J has provided a helpful recap of the approach to the question of when it is necessary to carry out a fact finding hearing in the context of Court of Protection proceedings. As she noted: 48. Finding of fact hearings are relatively rare in Court of Protection cases.

As many will know, the House of  Lords convened a Select Committee to consider the Bill, which heard from witnesses in late October / early November.  It has now finished its evidence sessions.  The transcripts of the oral evidence given by witnesses can be found here; their written evidence can be found here.  My oral evidence to the Committee can be found…

Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights of Persons with Disabilities: Supporting the Legal Capacity of All Persons with Disabilities (Bloomsbury, 2025, 167 pp, hardback / ebook, £81.00 / £64.80) I should start this review with a confession. I asked to be provided with this book for review out of a slight sense of duty, so as to keep myself abreast of the literature in this area. 

Three important developments, on different timelines, have occurred in relation to deprivation of liberty. The first is the publication on 23 October by the CQC of their annual State of Care Report, which includes a specific section under 'groups of people of concern' on deprivation of liberty.  It is a long section, but I reproduce the opening paragraphs here: We have raised serious concerns about the safeguards and the need for system-wide reform for a number of years.

Even by the standards of the Court of Protection, Re KP (Termination of Pregnancy) EWCOP 35 (T3) is a difficult case.  It concerned a 19 year old woman who, in Poole J’s understated summary had “experienced very many challenges in her life,” starting at birth when hypoxia led to an acquired brain injury. She was now 17 weeks pregnant.  The questions before Poole J were:

Welcome to the October 2025 Mental Capacity Report. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: time-specificity of capacity (again), a Welsh primer on key caselaw and urban myths around s.4B MCA 2005; In the Property and Affairs Report: two guest articles from new members of the Court of Protection on attorney elephant traps;

[I set out here a press release from the Office of the Public Guardian - the 'clarification' relates to a consent order, rather than a judgment.  If / when the consent order is made public I will add it to this page] On 18 July 2025, the Court of Protection clarified how vehicle contracts under the Motability Scheme should be handled when arranged by a deputy.

As many will know, by contrast to the position in England and Wales (and indeed Scotland), moves towards legislating for assisted dying / assisted suicide are being taken forward in Jersey as Government legislation.  The draft Bill has now been published, and the draft with its accompanying report should, I suggest, make mandatory reading for Parliamentarians in 'mainland' UK jurisdictions. 

By accident or design, Poole J appears to have found himself the Tier 3 transparency guru.  In Re Gardner (Deceased)(Duration of Transparency Order) EWCOP 34 (T3) he made a range of important observations about (and in passing raised some questions about) the operation of the transparency framework within the Court of Protection. As Poole J identified at the outset: 1. This is the third judgment I have published in these proceedings.

In this 'in conversation with,' I talk to Professor Peter Bartlett about his article "Beyond the liberal subject: challenges in interpreting the CRPD, and the CRPD’s challenges to human rights," and discuss how the CRPD challenges conventional civil and political rights, the implications for the role of the state (and what happens if the state is not benign), and what the CRPD requires of civil society.

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 been told with complete confidence that it was possible to deprive someone of their liberty in an emergency where they lacked capacity to consent to the steps required to provide them with life-sustaining treatment, or to prevent a serious deterioration in their confidence, and to rely in so doing on the protections contained in s.4B.

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 time-specific MCA 2005 in real life. The facts of the case are disturbing, both in the depths of the despair that they illuminated on the part of the young person involved, and also for the fact that they are by no means uncommon. 

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 Practice Direction makes clear,  Court of Protection proceedings in or having a connection with Wales must be conducted on the basis that the Welsh and English languages are treated on the basis of equality.

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 walkthrough of the recommendations.  It is a personal view, but may hopefully shed light on some of the thinking behind the 40 recommendations made, and - more to the point - encourage you to read the full report in all its glory.

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) on whether making an application is appropriate; (2) updated sample pre-issue letter, witness statement, position statement and letters of instruction to an independent social worker and an independent psychiatrist;

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, bioethics, public policy and law.  Together with Professor Gareth Owen and Professor Katherine Sleeman, also CLADD members, we have prepared a briefing on the Terminally Ill Adults (End of Life) Bill.

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 1989. The objective of our recommendations is to make the law clearer, simpler and fairer. Taken together, the reforms should provide a more modern legal framework, better suited to meeting the specific needs of disabled children and their families.

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 projects such as Disabled Children's Social Care, on which I was a consultant; the final report for which should be out shortly).  These range widely over such matters as consent in the criminal law, public sector automated decision-making, deeds and the defence of insanity. 

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; (2) In the Property and Affairs Report: the OPG annual report and increases to LPA fees; (3) In the…

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 Capacity Act is contributing to preventable deaths, unlawful detentions and growing human rights concerns. The Mental Capacity Act (MCA) is the legal foundation for decisions made on behalf of people who cannot decide for themselves, because of dementia, learning disability, brain injury or serious illness.

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 James, is that there may be situations in which, objectively, a person’s medical situation might appear hopeless, but nonetheless continued treatment is in their best interests.  Such a case is that of…