Handbook Updates

Updates

This page contains updates to the Handbook, which are done on a quarterly basis (the next update due on 5 July 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.

3.127-3.135

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 been clearly delineated by the former Vice-President, Hayden J, in Lawson and Mottram, the decision of Poole J in Parr at the start of 2026 threw matters into the air.  Purporting to apply Lawson and Mottram, Poole J took an approach that was (arguably) driven by pragmatism as opposed to the statutory framework of the MCA 2005.  In Re XY [2025] EWCOP 55 (T2), a case which was handed down after Parr (at least according to the citation), but which did not refer to, Senior Judge Hilder – construing the authority of personal welfare deputies – took an approach much closer to Lawson and Mottram.   In  Re HDEB [2026] EWCOP 12 , HHJ Beckley declined to appoint personal welfare deputies in circumstances factually similar to those of Parr, but granted permission to appeal, recognising the differences in approach.  It is to be hoped that the appeal can be transferred to the Court of Appeal, as otherwise we will have a further – potentially inconsistent – Tier 3 decision in relation to this important point of principle. 

3.326-3.327

The Mental Health Act 2025 received Royal Assent on 18 December 2025.  The majority of the provisions are not yet in force.  Key provisions that are in force are

1. 1. (as of 18 February 2026) 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).  Precisely what these have achieved, and hence, how they interact with the MCA (see chapter 22) is discussed in this blogpost by Alex here. 
   2. (as of 6 April 2026) the coming into force of a new Mental Health Act 1983, s142C, extending the remit of the Human Rights Act 1998 to private care providers, requiring them to act compatibly with the Convention rights set out in the Human Rights Act 1998, when providing services as set out in section 142C(2).

Alex maintains a page on the Mental Health Act 2025 here.

6.26

A protocol has been put in place between Advocate and the Court of Protection Bar Association, which sets out the process for sourcing a
volunteer barrister to help with urgent advice or representation. “Urgent” means that there is a hearing in the next 14 days. 

The organisation Advocate helps in two ways: by helping find a barrister and helping with direct public to barrister access. 

For non-urgent hearings, the person needing free legal advice or representation can send an application to Advocate.

Requests for a CPBA barrister who can provide free urgent COP advice or representation should be sent to:
courtofprotection@weareadvocate.org.uk 

Advocate and the volunteer barrister will be helped by having as much of the following helpful information as possible:

• • Case name and number;
  • Name of unrepresented party;
  • Contact details for the unrepresented person.
  • Names of representatives of other parties (solicitors and counsel), and their contact details, where known;
  • Date and time of the hearing, hearing time estimate, the judge’s name;
  • Hearing type (eg, case management or final hearing);
  • Whether the volunteer can attend remotely (that will greatly increase the
    chances of securing very short notice representation);
  • An outline of what the case is about and the main issues;
  • How those issues relate to the unrepresented party;
  • Particular documents to consider.

12.11

In SJ v Cardiff & Vale University Health Board & Anor [2025] EWCOP 54 (T2), HHJ Muzaffer analysed and applied the case law relating to litigation capacity in some detail.  On the particular facts of the case, he found it pragmatically possible to defer reaching a final determination about P’s capacity to conduct the proceedings until reaching a conclusion as to what substantive relief was required, which enabled her lawyers to act on the basis of her instructions.  Whilst this is not always going to be possible, the approach taken merits consideration in any ‘borderline’ case.  

13.104

The approach suggested in this paragraph to the situation where one party wishes to obtain further expert evidence as they are dissatisfied with the evidence provided by the joint expert was adopted by HHJ Burrows in DA (Whether to replace a Single Joint Expert) [2026] EWCOP 7 (T2).

13.126

The importance of complying with the Closed Hearings Guidance was emphasised by Theis J in Bristol City Council v CC [2026] EWCOP 4 (T3), who noted that prior any application being made for a closed hearing / closed material: 

there must be careful analysis of the legal and evidential basis upon which the court is being asked to order such a hearing, and for any material to be withheld in accordance with the principles so clearly set out in the Guidance.

14.8-14.10

The importance of complying with the Closed Hearings Guidance was emphasised by Theis J in Bristol City Council v CC [2026] EWCOP 4 (T3), discussed under the update to paragraph 13.126 above. 

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 appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) was heard on 25 March 2026; all parties agreed (to different extents) that the guidance given by Poole J did not accord with the requirements of the COPR.  

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.

In SW v (1) Nottingham City Council (2) JW [2025] EWCOP 53 (T3) Poole J expressed reservations as to the wisdom of holding a fact-finding hearing prior to a determination of capacity, observing that it had not helped produce the clarity that had been hoped for.  

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.”

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:

1. 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.
2. 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.

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.  

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.

Chapter 3

The approach to serious medical treatment cases, both procedural and substantive, has been thrown into some considerable doubt by the decision of the Court of Appeal in Townsend v Epsom & Helier University Hospitals NHS Trust [2026] EWCA Civ 195, in which Baker LJ held (at paragraph 68) that:  

(1) All decisions about incapacitated adults, including clinical decisions, have to be made in the patient’s best interests, taking into account all relevant circumstances and taking the steps identified in s.4 of the MCA.

(2) If all parties (including family members, treating team and, if obtained, second opinion) are in agreement that it is not in the patient’s best interests to continue life-sustaining treatment, then this can be withdrawn without application to the court.

(3) If, at the end of the clinical decision-making process, there is disagreement between any of the parties about the continuation of life-sustaining treatment that cannot be resolved by discussion and/or mediation, then the matter should be referred to the Court of Protection.

(4) If a court application is required, the NHS commissioning body with overall responsibility for the patient should bring and fund the application.

(5) In exercising its powers to make declarations and orders about the patient’s best interests, the Court of Protection cannot compel the doctor to give a treatment that he or she considers clinically inappropriate.

The decision is at some considerable odds with conventional understanding, and its implications are far-reaching; many
are waiting with very considerable interest to see whether the matter goes further.