We do not publish a January Mental Capacity Report, but there have been a number of relevant developments meriting brief mention ahead of their fuller treatment come February.
The Court of Protection published several judgments in the immediate run up to Christmas, some of which contain points of wider importance.
Royal Free NHS Foundation Trust v EF & Ors [2025] EWCOP 52 (T3) is a very good worked example of the resolution of a particularly difficult dilemma. Is it better for a person with Down’s Syndrome requiring dialysis to continue living with their father, who does not recognise the need for such dialysis and has proven unable to support his son to access it, or to be moved into supported living where they will be able to access such dialysis in circumstances where, bar the medical issue, there would have been no suggestion that such a move would be in line with their wishes and feelings? McKendrick J found, ultimately, that “[t]he best interests evaluation is clear: both the quality and the length of his life strongly weigh the best interests balance toward separation from his father to ensure he receives regular and sufficient dialysis and medication to keep him as healthy as possible. This is a life and death issue for EF and the importance of it cannot be downplayed.” Importantly, the case demonstrates a clear-eyed analysis by the judge of the point at which it becomes impossible to give further latitude to someone (here P’s father) who has shown themselves unable to meet their stated commitments to support P’s needs.
Re LM [2025] EWCOP 50 (T2) is of note, in particular, for the rejection of the proposition that evidence relating to capacity provided for the (narrow) purposes of determining an application under s.21A MCA cannot be used if the court is considering ‘jumping the tracks’ to a full-blown welfare determination under ss.15-16 MCA 2005. HHJ Khan noted at paragraph 92 that:
Whether I make declarations under section 15 is a matter of case management. Exercising those powers in accordance with the overriding objective (CoPR 1.1 and 1.2), I conclude that it would be unfair to LM and contrary to efficient case management to defer such declarations. Addressing them now promotes expedition, saves expense, avoids unnecessary future hearings, and it would ensure that LM’s interests and position were properly considered. I also bear in mind that during his submissions Mr Brownhill did not suggest that it would be unfair to ICB if I were to make a declaration under section 16.
The case also serves as (another) reminder that there will be circumstances in which it is simply not possible to disentangle capacity to make decisions about residence from capacity to make decisions about residence. HHJ Khan identified at paragraph 95 that “[o]n the facts of this case, care and accommodation are so closely connected that they cannot realistically be separated. LM’s inability to appreciate his need for intensive support directly affects his ability to make a meaningful decision about accommodation. The level of care he requires dictates the type of accommodation available. LM has repeatedly asserted that he does not need support, a belief that illustrates his inability to understand the foreseeable consequences of rejecting care. That failure goes to the heart of his decision-making about residence.”
The decision in SW v Nottingham City Council & Anor [2025] EWCOP 53 (T3), concerning capacity in the context of coercion and control, is inordinately complicated, through no fault of Poole J, but because the route by which the case had proceeded. The case was an unsuccessful appeal against the conclusions reached by HHJ Rogers at a fact-finding hearing, but Poole J made clear that he was challenged by the background to that hearing, namely a case management decision that it was necessary to have a fact-finding hearing to determine the question of JW’s capacity in relation to various domains, and to the approach taken to that hearing. He was, it is clear, more than a little sceptical of the benefit of holding a fact-finding hearing in those circumstances; he was also challenged by the way in which the Scott Schedule had been produced, noting that:
24. […] In family proceedings, the courts have considered how best to present allegations of fact on which a party seeks findings, in particular where the allegation is of a pattern of behaviour said to constitute controlling or coercive behaviour. In Re H-N[2021] EWCA Civ 448, the Court of Appeal said that when an allegation of controlling and/or coercive behaviour is alleged, that should be the central allegation to be considered and “Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour” In Re JK[2021] EWHC 1367 (Fam) and Re B-B [2022] EWHC 108 (Fam) suggestions were made about how to draft allegations of fact in such cases. On the one hand it is unhelpful to have a long Scott Schedule containing multiple allegations about individual events. On the other hand a simple, unparticularised allegation that a person has been guilty of coercive or controlling behaviour is not helpful. It might be helpful to have a narrative statement of the relationship but include some specific examples of abuse and evidence as to when it started and ended, if it has ended. It might assist to group allegations under different headings of control or coercion.
Although it did not form part of the appeal, Poole J also observed at (paragraph 20) that:
In this appeal I am not concerned with Dr Todd’s conclusion that JW’s “borderline intellectual functioning” met the diagnostic test, nor the potentially nuanced question of the causal nexus between her inability to make decisions as to care, residence and contact, and her borderline intellectual functioning. However, being a victim of coercion and control is unlikely to be found to be an impairment of or a disturbance in the functioning of the mind or brain. A victim of coercion and/or controlling behaviour may or may not lack mental capacity to make certain decisions including contact with the person who exercised control or coercion. A person who otherwise has mental capacity but is who is so subjugated by abusive behaviour that their will is overborne, may be the subject of an application to the High Court to exercise its inherent jurisdiction to protect the autonomy of such a person.
As Poole J made clear in remitting the case to HHJ Rogers (having clarified what, in fact, stood as findings of fact), one of the matters that he would have to address as soon as practicable in reaching a conclusion as to capacity was: “(d) [w]hether the causal nexus is established given the significant role of coercion and control and the need to identify a causal nexus between the inability to make a decision and an impairment or disturbance in the functioning of the mind or brain.”
In London Borough of Lewisham v SL & Anor [2025] EWCOP 51 (T3), Theis J endorsed the (ultimately agreed) position that a young woman with a range of cognitive and physical impairments should remain living with her parents with a pause of at least six months in assessing her for and introducing her to new placements due to the level of stress it was causing her. However, and in a pattern which can be all too familiar, Theis J observed that
45. Whilst there is this large measure of agreement the evidence has demonstrated, in my judgment, an element of drift in the care planning for SL. The court recognises it has been a dynamic situation that has been difficult to manage. However, with the conclusion of these proceedings and the care package relatively stable the court expects there to be a renewed focus and proactive planning by the local authority in the following areas:
(1) Solution focused planning by the allocated social worker together with the care team to look at concrete ways of supporting SL undertaking more activities in the community and engaging with people nearer to her own age. The position in relation to XY demonstrates the difficulties. The evidence is that SL greatly benefited from her period at XY. A more concerted effort should be made to engage constructively with XY to secure SL’s attendance there again by making solution based suggestions, such as an additional carer attending for a short period.
(2) To be more creative in looking at respite care, further exploring ways it could be done with SL remaining at home with known carers and supporting DL and TL going out of the home for short periods. In addition, to start planning for SL to have short day trips of interest to her. SL has identified places she would like to visit over six months ago when speaking to Mr Caulfield. They were referred to in the oral evidence, but nothing appears to have been done to move that forward. The statements filed by the local authority set out reasons why things can’t happen. Whilst the difficulties need to be recognised the default dial of it not being possible needs to be moved to look at ways changes can happen.
(3) It is difficult to see how GF [the allocated social worker] can make any informed decisions about next steps for SL’s care when there appears to be such limited direct contact between GF and SL and her family. There is no established working relationship, they very rarely meet. SL’s interests will be much better served and understood by there being an effective working relationship with the social work team based on first-hand knowledge and assessment rather than working at a distance. The court recognises the pressure on resources, however I am clear that if there is a securer foundation to that critical relationship the prospects of collaboratively making and implementing decisions regarding SL’s future placement and any respite care significantly increases.
(4) There needs to be a clear plan agreed between the parties regarding the essential requirements for any placement for SL. This will need to factor in an agreed process for any placement to be visited by the social work team. If following that the local authority are putting the placement forward, they need to explain why and how and to whom that is going to be communicated, including what steps they propose about introducing it to SL and how the wider family will be involved. Any communication needs to explain how any prospective risks will be managed and how they have been balanced with other considerations that support the proposed placement.
(5) Active consideration should be given to set up a more informed structure of decision making, perhaps through a Multi-Disciplinary Team structure, with more regular meetings with those who have direct knowledge of SL with a dynamic and transparent system of decision making. This would help reduce barriers, create more solutions and improve communication. The six month pause would be the ideal opportunity to establish this type of structure.
In King’s College Hospital NHS Foundation Trust v LE [2025] EWCOP 46 (T3), Theis J was concerned with LE, a 46 year old woman with a long standing diagnosis of schizophrenia and diabetes. Theis J ultimately endorsed the amputation of “all four fingers and part of the palm on LE’s left hand, and most of her left thumb, the tips of the fingers on her right hand and parts of her toes on both feet due to dry gangrene. Then to carry out reconstruction surgery to both hands to cover exposed bone with tissue from other parts of her body. The plan is for this reconstruction to be done at the same time as the procedure for the amputations.” This draconian step was taken in the face of LE’s objections, but in circumstances where LE had made clear that she did not wish to die. Theis J made a particular point of emphasising the fact of her meeting with LE, as “extremely helpful. Wholly understandably she was scared and worried about what was being proposed. I was struck that she had some understanding of the court, that I would be making a decision and this was her opportunity to tell me what she wanted me to hear. I explained I would listen to what everyone said before I made any decision and she understood that.”
Outside the courtroom, the most important development was undoubtedly the passage of the Mental Health Act 2025, as to which see this post here.
The OPG has published a helpful guide for staff in regulated markets to learn more about lasting powers of attorney; enduring powers of attorney; deputyship orders; guardianship court orders. Written in partnership with the UK Regulators Network (UKRN), Ofcom, Ofwat and the Financial Conduct Authority. It is intended to help policy makers in financial services and utility companies provide straightforward and consistent information for staff, which will make the process easier for customers.
The Joint Committee on Human Rights, as part of its inquiry into the human rights of children in care settings, held an evidence session which (coincidentally) was on the 77th anniversary of the Universal Declaration of Human Rights. I hope that it is not too cheesy to note that this gave me the opportunity in giving evidence to read into the record Eleanor Roosevelt’s timeless observation that human rights start in the small places close to home.
Finally, and very sadly, I was informed that Rachel Griffiths MBE died just before Christmas. She was a true force of nature, and force for good in the capacity world; we will write more about her work in the February issue of the Mental Capacity Report. I will miss her hugely but not anywhere near as much as will her family and friends, to whom my heartfelt condolences go out.
