Updates
This page contains updates to the Handbook, which are done on a quarterly basis (the next update due on 5 April 2026). All references are to paragraph numbers in the 5th edition, which stated the law as at July 2025. We also welcome feedback and suggestions to alex.ruckkeene@39essex.com.
3.324
DHSC announced on 18 October 2025 that it is consulting on the Liberty Protection Safeguards. We reproduce the relevant text of the press release here:
A consultation on the Liberty Protection Safeguards will be launched in the first half of next year, seeking the views of those affected such as families, carers and practitioners including social workers, nurses, psychologists and occupational therapists. It will be jointly run by the Department of Health and Social Care and the Ministry of Justice.
[…]
The responses from this consultation will be used to inform a final Mental Capacity Act (2005) Code of Practice, which will be laid in Parliament.
The revised code of practice will incorporate changes in case law, legislation, organisational structures, terminology and good practice since 2007, addressing critical challenges in the existing Deprivations of Liberty Safeguards framework.
The last time the Mental Capacity Act Code of Practice and Liberty Protection Safeguards were consulted on was in 2022, which did not lead to any changes.
Alex maintains a page on the Liberty Protection Safeguards here.
3.326-3.327
The Mental Health Act 2025 received Royal Assent on 18 December 2025. Whilst we do not yet have a timeframe for commencement for the majority of the provisions, those relating to the ability to discharge a Part 3 patient conditionally into circumstances of deprivation of liberty (where such is necessary to secure against the risk that they pose to others) will come into force on 20 February 2026.
Alex maintains a page on the Mental Health Act 2025 here.
14.73
In Re Gardner (Deceased)(Duration of Transparency Order) [2025] EWCOP 34 (T3), Poole J refused an application for an extension of a transparency order after the death of P where the primary interests to be secured were those of P’s family members. He noted that:
42. In the great majority of cases a TO made in Court of Protection proceedings ought to be discharged upon P’s death or within a short period after their death. The appellate courts might say that that should be the rule in all such cases. The purpose of the TO to protect the anonymity of P during the proceedings, or during their life, will have been served. I have considered the competing Article 10 and Article 8 rights in this case. Continuation of the TO, even in a narrower form, would significantly restrict the right to freedom of expression of Ms Huntington and others, including Professor Kitzinger, who wish to be free to discuss the important issues raised by the now concluded proceedings without impediment or fear of being accused of contempt of court. There is a strong public interest in them being free to comment on this case in which personal experiences of matters outside the proceedings are so closely linked to the issues raised within the proceedings.
14.88
The decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) is under appeal at the time of preparing this update.
15.3
Lieven J gave a helpful recap of the case-law relating to when a fact-finding hearing is necessary in Nottinghamshire County Council v SV & Anor [2025] EWCOP 37 (T3), directing herself in summary that:
55. The facts which are sought to be found must have a direct impact on the welfare decisions that need to be made in respect of P. The fact finding must be “necessary” for the determination of those welfare decisions. The fact finding exercise must be proportionate to the issues that need to be determined. In determining proportionality, the likely cost to public funds, the time taken and the impact of delay on P are all relevant considerations.
16.61
In the family case of Newcastle CC v JK [2025] EWHC 1767 (Fam), Poole J knocked on the head a rumour (spread, it appears, by the Foreign Commonwealth and Development Office) that taking video evidence from a witness located in a foreign jurisdiction required intra-state diplomatic liaison. The logic is equally applicable to cases before the Court of Protection.
18.7
In Re AB & Ors [2025] EWCOP 27 (T3), McKendrick J set out a useful ‘menu of options’ for Court of Protection practitioners responding to the situation where P has been abducted (in the instant case, to Jamaica, but the principles apply also where the abduction is within the jurisdiction).
18.13 and 18.21
In Buzzard-Quashie v Chief Constable of Northamptonshire Police [2025] EWCA Civ 1397, the Court of Appeal found that the existence of a penal notice was relevant to committal proceedings, and notice of this will usually be necessary for a court to decide to imprison a person. However, at paragraph 90, the Court of Appeal found that “[i]t is not a necessary prerequisite or condition precedent to imprisoning someone for contempt that there be a penal notice, and there may be some unusual cases where it is fair and just (SOCA v Hyman is an example) to imprison someone for breach of an order even in the absence of a penal notice.”
18.32
Further proceedings concerning the same contemnor as considered in this paragraph, Macpherson v Sunderland City Council [2025] EWCA Civ 1159, are an extreme example of repeated breaches of court orders, and make clear that where these are flagrant and persistent, a sentence of imprisonment may be the most appropriate option to address this conduct.
14.56
The Court of Protection (Amendment) Rules were laid before Parliament on 15 July 2025 (as the 5th edition was going to press – the version of the COPR contained in the hard copy incorporate the changes), 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 ICB [2023] EWCOP 29.
Rule 3 amends rule 4.1(4) of the 2017 Rules to remove a defunct cross-reference.
Rule 4 amends rule 21.4(2) of the 2017 Rules, which requires a committal application to give information to a defendant about their rights including their right to silence, to incorporate a requirement to warn the defendant of the risk of a court drawing adverse inferences from that silence if that right is exercised. This follows the decision in Inplayer Ltd. and another v Thoroughgood [2014] EWCA Civ 1511 and aligns with the position in criminal proceedings.
Rules 5 and 6 amend, respectively, rules 21.7 and 21.8 of the 2017 Rules, concerning hearings in contempt proceedings, in response to the decision in Esper:
- Rule 21.7 of the 2017 Rules is amended to require the court to consider, before the first hearing of any contempt proceedings, whether to make an order under rule 21.8(5) for the non-disclosure of the identity of the defendant in the court list. This is to prevent the utility of any subsequent non-disclosure order being undermined by the prior public notice of the identity of the defendant.
- Rule 21.8 is amended to provide that the court has a discretion to order the non-disclosure of the identity of any person during contempt proceedings, where certain criteria are satisfied. Currently, the rule mandates non-disclosure where those same criteria are satisfied, but only in respect of a party or witness to the contempt proceedings. Rule 21.8(11A) is inserted to clarify that the court’s discretion does not extend to restricting the disclosure of the identity of a defendant who has been convicted and sentenced to a committal order. An amendment to rule 21.8(13) clarifies that the judgment is transcribed and published solely where the court has made an order for committal.
17.7-17.8
Detailed consideration was given to the general rule in property and affairs cases in Riddle v NA [2025] EWCOP 39 (T3), in which the argument was run (unsuccessfully) that a person who had sought – on behalf of the local authority with safeguarding responsibilities – to be appointed a professional property and affairs deputy for an individual with an acquired brain injury should be awarded his costs notwithstanding the fact that the application had been dismissed when the evidence demonstrated that the individual had the relevant decision-making capacity. Harris J held that:
23. […] in determining whether the Court should depart from the general rule in Rule 19.2, and in considering all the circumstances of the case, the Court is not persuaded, as argued by Mr Riddle, that where an application is made in good faith and accompanied by supportive capacity evidence, the circumstances would have to be “truly exceptional” to justify departure from the general rule. Such a highly restrictive approach to Rule 19.5 and the Court’s overarching discretion in matters of costs is to place an unhelpful gloss on the rules.
As Harris J noted:
37. Ultimately, NA was successful in defending the application on the basis he had capacity, and the Court therefore had no jurisdiction to appoint a Deputy. The principle embedded in the Civil Procedure Rules 1998 Rule 44.3 that costs follow the event does not apply in the Court of Protection. However, as a matter of natural justice, it may appear perverse that NA should pay the costs of Mr Riddle – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending. Unlike Mr Riddle, NA did not choose this litigation. He is not at fault in any way. This has to be a weighty consideration in determining the issue of costs.
17.40-17.42
Harris J noted the conflicting approaches to the costs of litigants in person identified at paragraph 17.42 in Riddle v NA [2025] EWCOP 39 (T3), but declined to resolve the question as it did not arise on the facts of the case.
18.31
See the update above in relation to paragraph 14.56 regarding the Court of Protection (Amendment) Rules 2025.
Chapter 21
DHSC announced on 18 October 2025 that it is consulting on the Liberty Protection Safeguards. We reproduce the relevant text of the press release here:
A consultation on the Liberty Protection Safeguards will be launched in the first half of next year, seeking the views of those affected such as families, carers and practitioners including social workers, nurses, psychologists and occupational therapists. It will be jointly run by the Department of Health and Social Care and the Ministry of Justice.
[…]
The responses from this consultation will be used to inform a final Mental Capacity Act (2005) Code of Practice, which will be laid in Parliament.
The revised code of practice will incorporate changes in case law, legislation, organisational structures, terminology and good practice since 2007, addressing critical challenges in the existing Deprivations of Liberty Safeguards framework.
The last time the Mental Capacity Act Code of Practice and Liberty Protection Safeguards were consulted on was in 2022, which did not lead to any changes.
Alex maintains a page on the Liberty Protection Safeguards here.
23.1
Poole J gave a helpful and clear explanation of the role of the court in serious medical treatment cases in Re RS (Best Interests: Surgery and Intensive Care) [2025] EWCOP 38 (T3), noting (at paragraph 43):
Some would say that fundamental decisions about a person’s medical treatment should be made by those who know them best and who will be living with the consequences. However, the law requires that when disputed or finely balanced decisions regarding medical treatment of this kind are brought before the Court, it is the Judge who makes the decision as to what is in the person’s best interests, applying the principles and provisions of MCA 2005. Court procedures are designed to ensure fairness to all the parties involved. The process requires the judge to be objective. Responsibility for the decision is taken away from the family and the clinicians who may find objectivity difficult to achieve and is placed in the hands of the Judge. Precisely because the Judge is one step removed from the day to day care of the individual, they may find it easier to take a balanced overview than those with a particular, personal perspective.
23.19
In Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3), McKendrick J set out a useful route map for how the courts should proceed in a case where clinicians are seeking clarification that treatment steps that they are proposing to take (or, more often not take) in relation to a patient detained under the MHA 1983. This is an issue which is coming up particularly often in relation to patients with anorexia.
Court of Protection Handbook 