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Court of Protection Handbook quarterly update

The October 2026 quarterly update to the Court of Protection Handbook is now available. It provides updates on such matters as using documents disclosed in the Court of Protection in other proceedings and recognition and enforcement of Scottish orders. Of particular note is the update it has relating to personal welfare deputyship after HB, including an order that the Court of Protection may make where the reason for seeking an order is that the applicant is not being listened to in best interests decision-making – the likely outcome being that no deputyship order will be made, but an order made recording why they should be listened to.

LAG Community Care Conference 20 October 2026

Legal Action Group, in collaboration with 39 Essex Chambers, invite you to LAG’s Community Care Conference 2026.

We have a brilliant line-up of speakers who will inform and provide practical and tactical advice throughout the day. There will be a whistle-stop tour of the key community care cases over the last 12 months, as well as a wide range of plenaries and workshops.

We are also delighted to have Stephen Unwin, author of Beautiful Minds: How We Got Learning Disabilities So Wrong, joining us to discuss his new book which examines changing attitudes towards people with learning disabilities.

We hope you will enjoy coming together on the day to share information and ideas.

The conference will be in person at 39 Essex Chambers, Chancery Lane, London, WC2A 1DD.

Refreshments will be provided throughout the day including lunch and networking drinks to follow.

For more details and to book, see here

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) [2025] 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) [2025] 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.

i. Court of Protection proceedings are private by default (rule 4.1 of the Court of Protection Rules 2017) (‘COPR 2017’), even where the court directs that hearings are to be held in public under rule 4.3 of the COPR 2017. Many hearings in the Court of Protection are of course in public, but a direction for a public hearing does not convert the proceedings into “public proceedings” equivalent to litigation in the civil courts or tribunals.  The judge below erred in treating the proceedings as public simpliciter and in importing openness principles from jurisdictions which are public by default;

ii. Once lodged, position statements are “court records” within the meaning of rule 5.9(2) of the COPR 2017 (following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629) (‘Dring’). However, they are not automatically disclosable to observers or non‑parties, and court authorisation is required for disclosure of them to non‑parties under rule 5.9(2) COPR 2017;

iii. Open justice does not entitle observers to access all material informing judicial decision-making. Access to documents must be justified by a demonstrable application of the open justice principle, not by curiosity, research, education, or personal interest;

iv. Disclosure of position statements which cite highly personal source material from the written evidence is a serious interference with Article 8 ECHR rights; in this case, the court failed to engage with rule 5.9(4) COPR 2017 and specifically consider whether disclosure should be: refused, redacted, or subject to use restrictions (e.g., in relation to source evidence);

v. The procedure for disclosing position statements to members of the public should be considered as a matter of priority by the ad hoc Court of Protection Rule Committee (‘COPRC’); in the meantime, the guidance offered by the Judge at [J2/36] should not be followed; the court should in the meantime consider disclosing case summaries, chronologies and lists of issues to observers who request information;

vi. The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it.

More commentary on the case will follow in the next 39 Essex Chambers Mental Capacity Report.

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Court of Protection Handbook quarterly update and training event

The first quarterly update to the 5th Edition of the Court of Protection Handbook is now available on the Handbook website.

A reminder also of the training event to be held on 4 February 2026, at which our expert panel Alex Ruck Keene KC (Hon), Sophy Miles, Laura Mannering, and Kate Edwards will guide you through a 90-minute session offering practical guidance on three critical areas for practitioners:

  • Closed Materials Guidance – Understanding its scope and application.
  • A Deputy’s Role and Recent Case Law – The implications of Riddle v NA [2025] EWCOP 39 (T3) and what it means for deputies.
  • Enforcing COP Orders – Managing enforcement challenges, including police involvement and forced entry.

The session will end with an interactive Q&A session.

Designed for those working in the Court of Protection, this session is designed to keep you ahead of the curve and demonstrate how the Handbook continues to evolve between editions.

To book, please see here (note that this is not a free event – apologies for the previous suggestion that it was, although delegates will also receive a code for 10% off the book so…)

LAG Court of Protection Handbook in Practice – online training event on 4 February 2026

Court of Protection Handbook in Practice

Our expert panel Alex Ruck Keene KC (Hon), Sophy Miles, Laura Mannering, and Kate Edwards will guide you through a 90-minute session offering practical guidance on three critical areas for practitioners:

  • Closed Materials Guidance – Understanding its scope and application.
  • A Deputy’s Role and Recent Case Law – The implications of Riddle v NA [2025] EWCOP 39 (T3) and what it means for deputies.
  • Enforcing COP Orders – Managing enforcement challenges, including police involvement and forced entry.

The session will end with an interactive Q&A session.

Designed for those working in the Court of Protection, this session is designed to keep you ahead of the curve and demonstrate how the Handbook continues to evolve between editions. Delegates will also receive a code for 10% off the book!

To book, please see here.

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) 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;

(3) a new sample letter of instruction to a psychiatrist asked to produce a s.49 report and guidance on how to complete a s.49 report;

(4) materials already appearing on the updates pages to reflect developments since the book was published;

(5) a bonus PD which had slipped apparently everyone’s knowledge about cases involving Welsh speakers.

Transparency and position statements

Practitioners should note the judgment of Poole J in Re AB (Disclosure of Position Statements) EWCOP 25 (T3). In summary, Poole J has ruled that position statements are documents “put before” the Court within the terms of the usual Transparency order and are also documents “in the court records” for the purpose of rule 5.9 Court of Protection Rules 2017 (COPR). The key guidance for practitioners appears at paragraph 36 of the judgment and is set out below (emphasis added):

1. Position statements are documents “put before” the Court within the terms of the Court of Protection template Transparency Order. They also become documents within the court record once filed and they are filed once sent to the court listing office or a judge’s clerk or court clerk.

2. Parties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order. I also suggest that it would be helpful to include a warning on the front sheet of the position statement – a rubric similar to that which appears on published judgments, namely that “there is a Transparency Order in force and that irrespective of what appears in the position statement, the Transparency Order must be strictly complied with. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.“

3. An observer does not have an automatic right to see position statements, whether they are being used in a hearing they are to observe or have been used at a hearing they have previously observed. A change in the court rules and/or relevant practice direction (or to the standard Transparency Order referred to in the practice direction) would be required to create such a right.

4. If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives.

5. When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer attending a hearing without requiring a Court direction provided that (i) the position statement does not include the information protected by the Transparency Order and (ii) the observer has been provided with a copy of the Transparency Order so that they are bound by it.

6. At a hearing in public, a party must ask the Court for permission to provide a position statement to an observer who has requested it if the document does include the information protected by the Transparency Order, provided that the party is otherwise content to provide it. The Court can then allow a variation of the Transparency Order to allow for the provision of that non-anonymised position statement to that observer at that hearing, if the Court considers that an appropriate step to take without hearing further submissions. That variation should be recorded in the subsequent court order. To re-iterate, the order would be a variation of the Transparency Order for the purposes of a specific hearing and on request of the party or legal representative who would otherwise be in breach of the Transparency Order by providing the position statement to an observer.

7. If a party refuses to provide a position statement to an observer on request, the observer may apply to the Court for a direction, as provided for by the standard terms of the template Transparency Order, that they be provided with a copy on such terms as the Court considers fit.

8. Such an application need not be made formally under the procedure in COP Rules Part 10. There is insufficient time to allow for a formal written application to be made and the Transparency Order allows for its variation to be made of the court’s own motion or on application with no requirement for such an application to be made in writing. That is a much more suitable process for a request by an observer at a hearing. The application may be made orally to the Court at the outset of the hearing.

9. The Court will hear submissions by the observer as to how access to the position statement will advance the open justice principle, for example by allowing them to follow the case. If needed, the Court will then hear submissions from the party refusing to provide its position statement as to countervailing factors such as the risk of harm or proportionality. The observer may respond and the Court will give a short ruling and allow the application on such terms as it thinks fit, or refuse it. Dring will be applied.

10. If, after a hearing has concluded, a non-party – whether or not they observed the hearing – requests to be provide with a position statement that was used at the hearing, then they should make a Part 10 application under r5.9(2). That process must be adopted because the application should be on notice with an opportunity for the party concerned to respond. The applicant observer will need to make out a case in support of their application. The hearing having concluded, the more immediate, less formal process outlined above will no longer be appropriate. Again Dring will be applied (and see In re HMP below)

    This should provide clarity to judges, practitioners and observers. Those drafting position statements from now on are strongly advised to include the wording suggested by the judge on the face of the position statement.

    CoP Handbook – a new edition on the way!

    We would normally be publishing an update covering relevant developments over the past 3 months on this page, but the team (with some exciting new additions) are hard at work updating the 4th edition to a new, expanded, 5th edition. So bear with us if the page is not updated – but please do get in touch if you think that there are things that the 5th edition needs to cover, by email to alex.ruckkeene@39essex.com. We can’t promise we will be able to, but now is the time to ask!