The court term in England & Wales ends today, 31 July 2026. Whilst this does not mean that the Court of Protection (or indeed the other courts) stop hearing cases, it does mean that there may now be a lull in what has been an exceptionally busy period for those concerned with mental capacity matters. We do not have an August Mental Capacity Report (for the July one – with huge thanks to Arianna Kelly for taking this on in my absence – see here); pending the September Report, there have been further developments in July which do merit flagging.
Deprivation of liberty
The DHSC has yet to publish the further guidance that it has promised following what seems now to be universally to be known as AGNI. In the interim, I have updated my resources page on the case to include, amongst other things, a link to the National Mental Capacity Forum webinar held on the implications of the case, and the updated ADASS ‘triage’ tool.
The first reported case to consider AGNI has now appeared, Oxfordshire County Council v P [2026] EWCOP 33 (T2). It makes very interesting reading, but it is very important to emphasise that it does not represent a judicial interpretation of AGNI which represents a precedent to follow, as opposed to application to the facts of a particular case. I emphasise this because it is, with respect, an application which is not entirely easy to square with the decision of the Supreme Court in AGNI. Paragraphs 16-18 (where AGNI is considered and applied), show how strong the gravitational pull of Cheshire West remains; given that the facts of P’s case demonstrate (on their face) rather fewer of the ‘multi-factorial’ components of deprivation of liberty were satisfied than did MEG’s case, it would have been very helpful had the judgment explained why, in light of the Supreme Court’s clear statement that MEG was not deprived of her liberty, P in the Oxford case was nonetheless “very likely” to be so.
Personal welfare deputyship
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)
The latter point can be seen as an (implicit) confirmation that, whatever else the Epsom (Townsend) case means in the context of medical treatment, those exercising functions under the MCA 2005 cannot magic up more in the name of best interests than would be available were the person to have the relevant decision-making authority.
The decision also contains a discussion of the concept of autonomy which – spoiler alert – is not likely to be assistance in deciding whether to appoint a deputy or indeed (I suggest) more broadly in relation to the MCA 2005, given its “inherent elasticity in a range of contexts [which] makes it, in my judgment, an uncertain and inapposite tool” (paragraph 69). For more on the ethical issues in play here, you may find this book and /or podcast of interest.
The Mental Health Act and the Mental Capacity Act
In the most recent iteration in the very complex and difficult case concerning a woman identified as “Patricia,” Patricia v Cygnet Healthcare Ltd & Ors [2026] EWCOP 29 (T3). Peel J had to consider the question of whether the Court of Protection could make decisions about the medical treatment for mental disorder of a person subject to Part 4 of the Mental Health Act 1983. Perhaps surprisingly, this issue has not been the subject of express consideration before, although there have been a significant number of cases in which (almost invariably) the relevant treating bodies have sought confirmation from the Court of Protection that further treatment for anorexia is not in the detained person’s best interests. The precise jurisdictional basis for this has always been (to use a technical term) slightly fishy, given that s.28 MCA 2005 expressly provides that nothing in the MCA 2005 authorises anyone (a) to give a patient medical treatment for mental disorder, or (b) to consent to a patient’s being given medical treatment for mental disorder, if, at the time when it is proposed to treat the patient, their treatment is regulated by Part 4 MHA 2005. It could, perhaps, be justified by reference to the very broad scope of s.15(1)(c) MCA 2005, which provides for the making of declarations of lawfulness of actions in relation to those lacking the relevant decision-making capacity. (Parenthetically, where the question is about further admission, as opposed to treatment, to have the Court of Protection determining that non-admission is in a person’s best interests might also be thought to be treading on the public law toes of those charged by statute with determining whether the person meets the criteria for admission).
Peel J made clear that, by virtue of s.28 MCA 2005, if the treatment falls within the definition of medical treatment for mental disorder, the Court of Protection has no power to make decisions on the person’s behalf about that treatment. This is not a surprising conclusion when the two statutory frameworks are read side-by-side, but it does have a number of implications. Peel J set some of them out thus:
41. Although not directly relevant to the application before me, this case threw up a number of procedural matters in circumstances where an incapacitous patient is detained under MHA 1983 and where, as I find, by reason of s28 of the MCA 2005, the Court of Protection does not have power to make best interests orders in relation to medical treatment.
42. Where there is an issue, or any doubt about, whether a particular treatment falls within s63/s145(4) of the MHA 1983, the matter should be brought before the court: A NHS Trust v A [2013] EWHC 2442 (Fam)per Baker J (as he then was) at para 80. The court will consider the matter on a “full merits based review” (following the applicable judicial review test on challenges to s63): para 13 of R (on the application of JB) v Haddock (Responsible Medical Officer) [2006] EWCA Civ 961. In this case, there is no such doubt.
43. Where a patient is receiving treatment under s63 MHA 1983, and agreement is reached as to withdrawing or providing life sustaining treatment, there is no obligation on the parties to come to court: An NHS Trust and others v Y (Intensive Care Society and others intervening) [2018] UKSC 46.
44. I acknowledge that in some instances the clinicians/hospital/NHS Trust prefer to seek the approval of the court for any such agreement. In some reported cases (as noted above), that has taken place in the Court of Protection; in others (noted above), it has taken place in the Family Division under the inherent jurisdiction. And in Leeds and York Partnership NHS Foundation Trust v FF and GG [2025] EWCOP 26 (T3) McKendrick J made declarations both under s19 of the Senior Courts and under s16 of the MCA 2005. It seems to me that in respect of treatment encompassed by s63 of the MHA 1983 (whether life sustaining or not) agreed applications should not be brought to the Court of Protection. Rather, they should be brought by way of inherent jurisdiction/declaratory relief under s19 of the SCA 1981. Arguably, the inherent jurisdiction based on the “vulnerable adult” jurisprudence is the preferred route in the light of the Vice-President’s comprehensive judgment in the Cumbria case [supra]explaining its existence and applicability where the incapacitous person is detained under s3 MHA 1983.
45. Where there is disagreement in respect of treatment which falls under s63 of the MHA 1983, Mr Patel KC submitted, and I agree, that relief cannot be sought by the patient under the inherent jurisdiction because the statutory provisions of the MHA 1983 provide the answer, namely that the views of the clinicians prevail. For that reason, the application before me was confined to the Court of Protection.
Other remedies available to Patricia
46. This does not mean that Patricia is without potential remedies. It is common ground that she is entitled to bring judicial review proceedings in respect of the s63 treatment. She is also entitled to bring a Human Rights challenge under s7 of the Human Rights Act 1998. I make no further comment on these matters.
The Cumbria case to which Peel J made reference is the decision of Theis J in Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust & Anor v QF [2026] EWHC 1621 (Fam), a decision in which the Vice-President of the Court of Protection examined in detail the question of whether and when the inherent jurisdiction of the High Court can be used in such situations. She concluded that
70. […] whilst each case will need to be considered on its own particular facts:
(1) This court’s inherent jurisdiction is, in principle, available in circumstances where there is no remedy or not an effective remedy in accordance with the obligations under the ECHR, or there is some other identified reason for making the application and seeking orders.
(2) This court’s inherent jurisdiction is, in principle, available whether the person concerned lacks capacity (see A NHS Trust v A at [92]) or is vulnerable (see DL at [53]-[54]).
(3) Before making an application to invoke the inherent jurisdiction very careful scrutiny must be given by the applicant as to the need for and the basis of the inherent jurisdiction to make any orders sought. In this case Ms Watson’s careful analysis provided that, namely (i) QF lacked litigation capacity such that judicial review cannot provide a sufficient, practical or effective remedy; (ii) the decision whether to give, delay or withhold treatment is finely balanced; and (iii) exercising or not exercising the discretionary power to provide that treatment under s63 MHA within a particular timeframe may lead to premature death.
(4) If an application is made the applicant should identify in the application the underlying rationale for making the application, set out the orders sought and what, if any, rights are engaged under the ECHR.
Theis J also made some observations on the procedure required. In the case before her, the proceedings had been brought by way of a claim form under Part 8 of the CPR, used where the question or remedy is unlikely to involve a significant dispute of fact. That had been endorsed by McKendrick J in Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26. Theis J observed that
72. Whilst it is right that, depending on the circumstances of the case, there may be no factual dispute, that position may not remain. The overriding objective in Part 1 CPR and the courts wide case management powers, together with rule 8.8 CPR, enables the court to keep under review on a case by case basis whether the Part 8 procedure remains the correct procedure.
73. As a matter of practice, in circumstances such as this case, a Trust may wish to actively consider securing an external second opinion as a matter of urgency prior to issuing proceedings to support and inform any decision making in these difficult cases and whether an application for orders under the inherent jurisdiction is required.
74. Once the decision is made to issue an application invoking the inherent jurisdiction in circumstances where declarations are sought, as in this case, the application should be accompanied by a proposed draft directions order and the Official Solicitor should be notified. In addition, if the hearing is to be in public, a draft Reporting Restrictions Order that has complied with the relevant Practice Direction should also be submitted with the application. The application once issued should be allocated immediately to a full time Judge of the Division for directions.
There are four implications arising from these two judgments.
The first is that the decision of Peel J can be read as implicit confirmation that the fact that person lacks capacity to make a decision about their medical treatment for mental disorder does not mean that Epsom applies so as to require clinicians applying the MHA 1983 to take ‘best interests’ as their yardstick, but rather the provisions of Part 4 MHA 1983.
The second, linked, is that in due course Part 4 MHA 1983 will be brought much close to the provisions of the MCA 2005 by the Mental Health Act 2025 so as to make the factors to be considered by a clinician determining what treatment to give under Part 4 very similar to those which are taken into account on a ‘best interests’ basis (they cannot be identical, and the term ‘best interests’ cannot be used because Part 4 can apply to those who have capacity)
The third is that it might be thought rather optimistic of Peel J to consider that Patricia could bring a challenge by way of judicial review. The MHA Review expressly recommended that there be a route of challenge within the MH Tribunal in relation to medical treatment decisions precisely because judicial review is (in reality) very close to a non-starter. That recommendation was not taken up, and, whilst the changes to be brought about the MHA 2025 will enable a closer scrutiny of medical treatment decisions by the Tribunal as part of the overall ‘package,’ they do not ultimately provide the direct counterpart to the scrutiny available before the Court of Protection. Whilst there are treatment safeguards available under Part 4 (most obviously the SOAD procedure) which are being strengthened by the MHA 2025 changes, safeguards which do not apply when the MCA is in play and reliance is therefore placed solely on s.5 MCA 2005, it is perhaps not immediately obvious why – as regards judicial oversight – there should be such a difference between those under Part 4 MHA and those falling under the MCA.
The fourth implication is that the Cumbria case reinforces the need for there to be a Practice Direction under the CPR for inherent jurisdiction applications, both such as the (relatively niche) ones in contemplation here, and the rather more extensive number of cases brought to seek relief in cases involving coercive control. The CPR is not well-suited to these sorts of cases, and a Practice Direction would make navigation of its provisions as painless as possible.
The courts and litigation capacity
There have been two cases concerning this issue, one before the family courts, and one before the civil courts.
In RT v DW [2026] EWFC 183 (B), HHJ Muzaffer gave a characteristically thoughtful – and rightly ‘bothered’ – judgment about the problems he faced in a financial remedies hearing in the Family Court with two litigants in person, one of lacked the capacity to conduct the proceedings. The Official Solicitor at one stage had been involved, but then for reasons which clearly frustrated HHJ Muzzafer, but which he could not properly criticise her in relation to, ceased to do so. As he noted:
25. The systemic difficulty is that vulnerable individuals such as the husband do not have automatic recourse to legal aid in cases of this kind. The husband has been left to navigate matters alone and without representation, while the wife has had to endure the continuing financial and emotional burden arising from the protracted litigation. The reality is that both parties have, in a very real sense, been impeded in their access to justice and have suffered hardship as a result. This is a matter that ought to give rise to real concern.
26. I note that other possibilities were considered by the court, including pro bono assistance or the involvement of the Court of Protection. In terms of the former, advocates and charitable organisations understandably will not agree to act when there is a risk of being liable for costs. In respect of the latter, any application to the Court of Protection for the appointment of a professional deputy, who might then assist as a litigation friend, would be a lengthy and costly process. There is also no clear avenue as to who or how such application would be made in the circumstances of this case. Finally, there are no family or friends willing to take on the role.
HHJ Muzzafer was therefore left to navigate through as best he could to do justice to the parties, and, for reasons he set out in his judgment, held that he could properly proceed notwithstanding the lack of a litigation friend to represent the husband. He did manage to involve an intermediary, and, at their recommendation, prepared a simplified explanation of the judgment appended to the end.
The issues identified by HHJ Muzzafer, although they arose in the Family Court, are equally problematic in the civil courts. They were the subject of a detailed report and recommendations by the Civil Justice Council in 2024, recommendations which have yet, sadly, to bear fruit.
In TLA v Chelsea and Westminster Hospital NHS Foundation Trust [2026] EWHC 1751 (KB), HHJ Carmel Wall, sitting as a Judge of the High Court, had to consider whether the litigant in person claimant had capacity to conduct relatively complex personal injury proceedings arising out of asserted breaches of confidence and other matters. The issue had been put in play by the defendant’s expert, who had been instructed to report on causation, condition and prognosis. Whilst HHJ Carmel Wall found that the defendant had been entirely right to raise the issue before the court in light of the expert’s suggestion that the claimant lacked the capacity to conduct the proceedings, she found that, in fact, he had it. Of particular interest is the extent to which HHJ Carmel Wall was concerned about the expert’s pre-JB approach of analysing the so-called diagnostic limb first, noting that:
66. […] Dr Bradbury’s assessment of capacity is substantially undermined by the error she made in the way in which she approached the questions that had to be considered in making the assessment. She frankly accepted that she believed that the diagnostic criterion had to be addressed as the first stage of analysis and was not aware of more recent authority that mandated consideration of the functional criteria as the first stage. Her error had the result that she viewed the Claimant’s functional decision-making through the lens of the diagnosis she had arrived at rather than making an openminded assessment of his ability to weigh or use information to make a decision.
67. When asked in her oral evidence to approach the assessment from the correct starting point, she accepted that she found it very difficult to untangle her functional assessment from her diagnosis. She was not able to explain convincingly the areas in which she believed the Claimant was unable to use or weigh information without straying into a value judgment about how he did so. Her opinion on this issue seemed to me to be unduly influenced by her own view of the wisdom and reasonableness of the position he had taken in relation to the Defendant.
The expert also found herself drawn to protect the claimant:
68. It also appeared from her evidence that another factor influencing her view on capacity was her clinical opinion that the litigation was causing damage and distress to the Claimant such that pursuing it was to the detriment of his mental health. She did not see any positive outcome for the Claimant was at all likely. She saw his determined pursuit of the claim in those circumstances as unreasonable and unwise. She recognised that as a clinician, her instinct was “to protect people from themselves”.
69. Time will tell whether she is correct in her assessment of the merits of the claim and/or its ultimate impact on the Claimant. But in my judgment, she has conflated her view of the wisdom of pursuing the claim with issues of capacity. It is undoubtedly the case that the Claimant has strong views about this litigation, and his priorities are influenced by those views. When making decisions about the conduct of the claim, he has and no doubt will continue to put those strong views at the forefront of his decision-making process. But he is not shown to lack capacity simply because he weighs factors differently from others. Nor is he shown to lack capacity because he makes decisions that may be seen as unwise by others, or which are not considered by others to be in his own best interests.
Another – not uncommon – feature was the strong feelings held by the claimant:
70. I have considered Dr Bradbury’s particular concern with the Claimant’s antipathetical approach towards the Defendant and towards evidence with which he does not agree. In the context of functional decision-making, she may well be right that he lacks objectivity. Many capacitous litigants lack objectivity when conducting a claim in which they passionately believe. They may lack an objective view of the defence to their claim, the motives of a defendant, the evidence that is against them or the motivation of a witness giving that evidence. A lack of objectivity may be expressed strongly. But it does not equate with incapacity. I am not persuaded by Dr Bradbury’s evidence that the Claimant is unable to make the relevant decisions necessary in this case.
The decision stands, with respect, as an extremely good ‘worked example’ of how to analyse and resolve doubt about capacity whilst steering an appropriate path between the Scylla of over reliance on the presumption, and the Charybdis of paternalism.
Protection of vulnerable adults
In a relatively rare criminal case before the Supreme Court, important clarification has been given as to the scope of the offence of under s.5 of Domestic Violence, Crime and Victims Act 2004 “allowing a child or vulnerable adult to die or suffer serious physical harm.” In R v Sheikh [2026] UKSC 28, the Supreme Court made clear that the relevant question was not whether the defendant foresaw, or ought to have foreseen, the precise unlawful act that caused serious physical harm to the victim, but whether the act occurred in circumstances of the kind that the defendant foresaw or ought to have foreseen. The provision required a broad and purposive interpretation. Where an act causing serious physical harm to a vulnerable adult was “utterly different” from the antecedent violence inflicted on the victim, that was not necessarily fatal to the requirement of foresight in s.5(1)(d)(iii).
Consent to anaesthesia, and medical treatment frameworks around the British Isles
The Association of Anaesthetists have published an updated version of their guidelines (full disclosure, I was on the working group along with, amongst others, Nadine Montgomery), available here. The supporting material also includes a table setting out the main differences in the legal framework for decision-making and consent, including in relation to those lacking capacity, in the nations of the UK and Ireland.
Assisted dying
Lauren Edwards MP has now published the Bill that she intends to bring forward to the Westminster Parliament in September to ‘finish the task’ of Kim Leadbeater MP. It is essentially identical to that earlier Bill. For the reasons set out in this briefing, I very much hope that Parliamentarians do not seek to ‘finish the task’ in this way, given the fundamentally flawed nature of the Bill but rather set in motion a review which can (1) work to operationalise a system for assisted dying (in the context, importantly, of the new Prime Minister’s agenda in relation to social care); and (2) allow an informed debate about eligibility.
If Parliamentarians in Westminster do want to seek to move forward in a considered fashion, they may well wish to look to Jersey, where the (Government-drafted) legislation received Royal Assent on 7 July 2026.
I am seeking to stay out of the shed as much as possible in August to recharge batteries, but will be back in September. I hope that those of you who are able to get a break do so and take full advantage of it.
