Handbook Updates

Updates

This page contains updates to the Handbook, which are done on a quarterly basis (the next update due on 5 January 2027).  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.

3.13

When the question of P’s capacity is before the court, they have the benefit of the presumption of capacity unless it can be shown on the balance of probabilities that they do not (see s.1(3) MCA 2005 read together with s.2(4).  However, outside the courtroom, the presumption operates differently.  In R (TDB) v London Borough of Haringey (Mind intervening) [2026] EWCA Civ 1184, the Court of Appeal made clear how it works, Baker LJ making three observations about its operation: 

105. First, I endorse the observation that the presumption of capacity should not be held out as a reason not to assess capacity when it is in doubt. As Swift J observed in Royal Bank of Scotland PLC v AB, supra, “when there is good reason for cause for concern, where there is legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity.” The presumption of capacity in s.1(2) of the MCA is an important principle when assessing capacity but it is not a reason for deciding not to assess it when capacity is in doubt. Secondly, the principle in s.1(3) that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success is equally important.  But again this is not a reason for deciding not to assess capacity when it is in doubt.  […]

106. Thirdly, there is a strong suggestion in this case that the decision not to conduct a capacity assessment may have been influenced by the earlier conclusion that T did not have a learning disability. But the question of an individual’s capacity is not determined by whether their level of cognitive ability places them in the category of “learning disability”. S.2(1) of the MCA refers to “impairment of, or a disturbance in the functioning of, the mind or brain”. It does not refer to disability. Someone who is categorised as having a learning disability may lack capacity to make some decisions but not others. Equally, someone who is not categorised as having a learning disability may lack capacity to make some decisions. […] 

3.127-3.135

In Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960, the Court of Appeal gave authoritative, appellate level guidance, as to the appointment of personal welfare deputies.  In giving the lead judgment, Sir Stephen Cobb, the new President of the Court of Protection, expressly moved away from the approach of the previous Vice-President, Hayden J, in the Lawson case.   At paragraph 63, Sir Stephen indicated that deputyship may well be appropriate in cases involving “some or all of the following features:

i) The applicant for the PWD stands in some special relationship in relation to P, such as in this case where the applicants are his parents with a special ability to understand and communicate with and for P;

ii) Where P’s wishes and feelings, their beliefs and values and the things which are important to them (see Aintree at §32 above) would be likely to be enhanced by the appointment of a PWD, to make choices for them as an individual human being;

iii) In circumstances in which it is likely that more than one decision will need to be made in the foreseeable future (see the Code at 8.39, Watt and Parr above); a series or “stream” (Parr) of decisions in respect of P is reasonably anticipated;

iv) When P is moving from childhood to adulthood and transitioning between children’s and adult’s services, where it may well be in P’s best interests to have someone acting as his agent for decision-making; transitional difficulties for young adults with lifelong impairments may justify short-term solutions;

v) The appointment may be particularly appropriate where it can be shown (as here) that public bodies have failed, or threaten to fail, properly to apply the MCA 2005 framework, particularly in relation to consultation with families;

vi) Decision-making in the foreseeable future needs to be prompt and agile in order to respond to an evolving set of circumstances.

Importantly, the Court of Appeal also made clear that:

It is important to remember in this case and in others like it that the statutory scheme permits the disclosure and sharing of relevant information about P, as appropriate, where it is in P’s best interests and necessary for meaningful consultation; such a practice is entirely in accordance with the current Code of Practice (see para.16.19-16.23). There are many examples in the post-Lawson caselaw to which we were taken of authorities failing to consider this important information-sharing power under the provisions of sections 4 and 5 MCA 2005 (see for example, Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3), and NHS South East London Integrated Care Board v JP (by his litigation friend, the Official Solicitor) & others [2025] EWCOP 8 (T3), London Borough of Lewisham v SL (by her litigation friend, the Official Solicitor) [2025] EWCOP 51 (T3)). Indeed, in this case the Judge rightly acknowledged this point (see again §21 above: “the system of collaborative decision making … does not always run as the statute intends”). I accept Mr Ruck Keene’s argument that concerns about the failure of this type of information-sharing between professionals and P’s family does not of itself justify the appointment of a deputy; I caution myself against treating deputyship as a mechanism to overcome professional hesitation or institutional risk-aversion. I further accept that appointing a deputy cannot alter the limits of public law decision-making; decisions by public authorities (e.g., as to resource allocation) must remain constrained by public law principles. A PWD cannot compel the creation of options or override resource-based decisions by asserting that a particular course is in the individual’s best interests.(emphasis added)

With thanks to Senior Judge Hilder, we reproduce here a template welfare deputyship order following the decision of the Court of Appeal in HB. It is important to note that the ‘suggestions’ at (i) – (viii) of paragraph 2 of the deputyship template are just that –suggestions of wording from which selection is to be made according to the facts of the case.  They should not be understood as invariably likely to be included (in contrast to the ‘standard’ provisions of a Property and Affairs deputyship order.)  For example, we would expect that (i) is not often included, residence issues generally be considered so serious that a decision of the court is to be preferred. 

In many situations, a welfare deputyship order is not actually needed.  Again with thanks to Senior Judge Hilder, we reproduce an order which may be made where the reason for seeking an order is that the applicant is not being listened to in best interests decision-making.  Although the result is an order refusing the application, it nonetheless leads to a piece of official paper which can be put before the relevant public body: a somewhat expensive and cumbersome way of ensuring that decision-makers actually comply with their obligations under the MCA 2005.

3.190

On 2 June 2026, the Supreme Court handed down its decision in In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘AGNI‘). The decision overruled the approach to deprivation of liberty set out in Cheshire West with immediate effect.   Alex’s resources page on the judgment contains relevant commentary and (more pertinently) official guidance as and when it is published. 

3.324

DHSC announced on 18 October 2025 that it was 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.

It is unclear, however, whether the Government will proceed with the Liberty Protection Safeguards in light of the Supreme Court decision in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘AGNI‘). The decision overruled the approach to deprivation of liberty set out in Cheshire West with immediate effect, radically narrowing the scope of Article 5 in the social care context.  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.  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.

7.107

In Re Various Applications in respect of ‘Direct Payments’ [2026] EWCOP 42 (T2) Senior Judge Hilder extended the logic of her decision in Lumb v NHS Humber & North Yorkshire ICB [2024] EWCOP 57 (T2) to apply to direct payments made by local authorities.  

7.142

The decision in Croll v Estate of Margaret Mary Thorpe Deceased & Ors [2026] EWHC 2232 (Ch) serves as an important reminder that the Court of Protection does not have the power to declare that a will is invalid, although, as the earlier case of VAC v JAD & Ors [2010] EWHC 2159 (Ch) (not referred to in Croll) makes clear, there will be situations in which question marks over the validity of an earlier will might speak in favour of making a statutory will now to reduce the chance of a later dispute about inheritance. 

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.  

13.73

Lieven J emphasised in London Borough of Camden v BW & Anor (Capacity Decisions; Reasons) [2026] EWCOP 26 (T3) (dismissing an appeal against a decision of Senior Judge Hilder) that a court is always entitled to depart from the view expressed by an expert.  She also rejected a submission that there was a particular burden on a judge to give reasons for departing from the presumption of capacity, noting that “[t]he standard of reasons remains the same whatever the issue, or where the burden lies, it remains to provide clear and intelligible reasons for the conclusions reached.”

13.91-13.93

Theis J set out detailed guidance for the instruction of experts in Bristol City Council v CC & Ors [2026] EWCOP 19 (T3); we have updated our precedent letter to take account of it. 

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.

13.129

In Hinduja v Hinduja & Ors [2026] EWCOP 34 (T3) Bacon J endorsed the common ground of the parties that “the Court of Protection’s ability to waive privilege on SP’s behalf came to an end when SP died, and that any request for further waiver of privilege must now be made to SP’s personal representatives, whoever they are” (paragraph 63). 

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.

14.85

In Hinduja v Hinduja & Ors [2026] EWCOP 34 (T3) Bacon J held (at paragraph 53) that: 

where one or other party to proceedings in the Court of Protection seeks to release or vary the confidentiality restrictions imposed in those proceedings, including after the death of the person the subject of the proceedings, the following general principles will apply:

i) The court will need to consider on a case-by-case basis the justification for disclosure of the relevant documents, and it will be for the person seeking disclosure to justify their request.

ii) The question to be asked is whether the specific interest in disclosure outweighs the ongoing interest in the protection of the confidentiality of personal and sensitive information contained within documents filed or disclosed in the Court of Protection proceedings, given the sensitive context in which those documents were provided, and the legitimate expectations of confidentiality on the part of all those involved in the proceedings.

iii) If disclosure is granted, it should be limited to what is essential to achieve the particular objectives justifying disclosure.

At paragraph 60, Bacon J also held that, where a party wishes to make use of documents disclosed into the proceedings in other proceedings: 

a blanket application for permission in respect of an entire set of documents is unlikely to be appropriate; rather the application should normally be made by reference to specific documents, in order to demonstrate why the circumstances are such as to justify the use of those documents for the collateral purpose sought. A targeted approach is, moreover, likely to be particularly important in Court of Protection proceedings in light of the particular context in which documents have been disclosed in those proceedings, as discussed above.

14.88

In June 2026, Court of Appeal allowed the appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) , making clear in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2025] EWCA Civ 640, that the guidance given there should not be followed.   

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:

1. 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. 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:

1. 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:

1. 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.

Following the decision Re Various Applications in respect of ‘Direct Payments’ [2026] EWCOP 42 (T2), the SCCO has now issued guidance.  It proceeds on the basis that retrospective authority is required where a deputy has claimed costs for managing direct payments from 11 October 2024 onwards. Where a final costs certificate has already been issued, it  refers practitioners to Q20 of the judgment. Otherwise the guidance provides clarity on what would happen.

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 22

DHSC announced on 18 October 2025 that it was consulting on the Liberty Protection Safeguards.  It is unclear, however, whether the Government will proceed with the Liberty Protection Safeguards in light of the decision in AGNI.  Alex maintains a page on the Liberty Protection Safeguards here.

On 2 June 2026, the Supreme Court handed down its decision in In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘AGNI‘). The decision overruled the approach to deprivation of liberty set out in Cheshire West with immediate effect.  Cases decided between 2014 and 2026 need to be approached with very significant caution if and to the extent that they seek to address whether a specific factual situation gave rise to a deprivation of liberty.   

Alex’s resources page on the judgment contains relevant commentary and (more pertinently) official guidance as and when it is published.  Two points perhaps bear particular emphasis:

2. 1. That the Supreme Court placed considerable reliance on the availability of safeguards in the MCA 2005 and in the law more broadly to secure appropriate decision-making (and review of decision-making) in relation to the care and treatment of those with impaired decision-making capacity (see paragraphs 10 and 141).  Those who are concerned about the implications of the judgment may want to think about how (in whatever context they operate) what might be said to have been the promises made to the court as regards the wider safeguards can be made good;
   2. The Supreme Court also placed significantly greater emphasis on Article 8 ECHR than the majority had done in Cheshire West(as, indeed, did Peter Jackson J in the Neary case to which the Supreme Court expressly referred at paragraph 10 of the judgment in AGNI).  It is therefore likely that there will be considerably greater focus on how the safeguards set out above appropriately secure the Article 8 rights of those with impaired decision-making capacity – including, in particular, identification of and accounting for their wishes, feelings, beliefs and values.

22.23

Prior to the decision in AGNI, the question of whether or not the person was deprived of their liberty was (largely) a non-issue on any s.21A application.  Further, many s.21A applications often became vehicles for resolving welfare disputes.  Following AGNI:

1. 1. The Court of Protection, of its own motion, will need to consider in any s.21A application whether or not the person is deprived of their liberty (because, if they are not, they do not satisfy the best interests requirement under Schedule A1, one component of which is that the person is a ‘detained resident’)
   2. It is likely that many cases cannot properly continue under s.21A, which means that the person could only continue to benefit from legal aid where they met both the merits and means test.  

22.65-22.86

In light of AGNI, it is difficult to see the basis for continuing a separate, ‘streamlined’ procedure as set out in these paragraphs.  Either the person is not deprived of their liberty, or they will in some way be manifesting a level of objection which would mean that the application would be unsuitable for a paper-based approach.  The invidiousness of the legal aid position set out at paragraph 22.66 therefore becomes even starker. 

Chapter 23

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.

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.

23.14

Lieven J addressed the question of delay with specific reference to those in prolonged disorders of consciousness in characteristically trenchant style in NHS Kent & Medway Integrated Care Board v OQD & Anor [2026] EWCOP 23 (T3), discussed further here.

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.

27.7

In Neath Port Talbot County Borough Council v CK & Ors [2025] EWCOP 47 (T3), Morgan J outlined the circumstances under which the court can revisit a conclusion about habitual residence.  She also made clear that where a person has been moved cross-border to England & Wales and there are issues about their habitual residence (and future residence / care arrangements), the matter should be placed before the Court of Protection, rather than moving to the use of DoLS as a first step. 

In CW v Hartlepool Borough Council and Scottish Borders Council [2026] EWCOP 40 (T3), Theis J set out a checklist of good practice points for cross-border placements involving Scotland and England.  In Argyll and Bute Council v RF (No 2) [2026] EWCOP 41 (T3), the same judge also confirmed what is expected in any Scottish proceedings leading to a guardianship order to be placed before the English courts authorising deprivation of liberty (nb, what is required is considerably more than usually occurs in Scottish proceedings, which requires careful explanation for those advising Scottish local authorities); see also in this regard Midlothian Council v DM [2025] EWCOP 61 (T3). 

Appendix B

The Court of Protection Fees Order 2007 has been updated with effect from 5 July 2026, with increases as follows

Description	Current	New
Application to start proceedings or application for permission to start proceedings	£421	£432
Filling an appeal	£265	£272
Hearing fees	£259	£266
Copy of a document fee	£5	£8