Court of Protection case update: April 2025

Niamh Brennan rounds up the latest Court of Protection rulings of interest to practitioners.

CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3) (12 February 2025)

This case concerned CT, a man in his 50s with significant medical conditions, a complex psychiatric history and substance dependency. This case was an appeal by the Official Solicitor, CT’s litigation friend, made against a decision by HHJ Beckley whereby final declarations were made that CT lacked capacity to:

  1. conduct proceedings
  2. make decisions about residence
  3. make decisions about his care needs.

The appeal was limited to the declarations regarding CT’s residence and care. The appeal was supported by the respondent local authority.

Grounds of appeal

  1. “The Judge set too high a bar in considering the relevant information that CT needed to consider when making decisions about his residence and care needs. In particular, the Judge erred in stating that CT’s mental impairments are relevant information which he needs to understand and use and weigh.”
  2. “The Judge started with CT’s mental impairments, deciding that they lead to his inability to make decisions rather than starting with whether he can understand/retain/use or weigh/communicate the relevant information.”
  3. “As capacity assessments are time and decision specific, the Judge erred in not fully acknowledging the change in the factual matrix at the time of the hearing.”

Legal framework

The Judge considered the legal framework as outlined at paragraphs 27-31.

The legal framework for assessing capacity and best interests under the Mental Capacity Act 2005 (MCA) is well-established and guided by key principles. The key principles in assessing capacity are summarised in A Local Authority v H [2023] EWCOP 4 in paragraphs 27(i) – 27(xi) as follows:

  1. An individual is presumed to have capacity pursuant to s 1(2) of the Mental Capacity Act 2005.
  2. The burden of proof lies with the person asserting a lack of capacity and the standard of proof is the balance of probabilities. 
  3. The determination of the question capacity is always decision specific. All decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of ss 1 to 3 of the 2005 Act, which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the state to be embellished. 
  4. 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 (Mental Capacity Act 2005 s 1(3). 
  5. A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise.
  6. The outcome of the decision made is not relevant to the question of whether the person taking the decision has capacity for the purposes of the Mental Capacity Act 2005.
  7. In determining the question of capacity, the court must apply the diagnostic and the functional elements of the capacity pursuant to ss 2 and 3 of the Mental Capacity Act 2005. Thus: a) There must be an impairment of, or a disturbance in the functioning of the mind or brain (the diagnostic test); and b) The impairment of, or disturbance in the functioning of the mind or brain must cause an inability to understand the relevant information, retain the relevant information, use or weigh the relevant information as part of the process of making the decision in question or to communicate the decision made.
  8. For a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the ‘impairment of, or a disturbance in the functioning of, the mind or brain’ required by s 2(1) of the Act.
  9. With respect to the diagnostic test, it does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary.
  10. With respect to the functional test, the question for the court is not whether the person’s ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof. 
  11. An inability to undertake any one of the four aspects of the decision-making process set out in s 3(1) of the 2005 Act will be sufficient for a finding of incapacity provided the inability is because of an impairment of, or a disturbance in the functioning of, the mind or brain. The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another.

The court also considered Paragraph 4.16 of the Mental Capacity Act 2005 Code of Practice which outlines the importance of giving P all the relevant information about a decision before assessing P’s understanding, and that every effort must be made to provide the information in the most appropriate way to aid P’s understanding.

The Supreme Court in A Local Authority v JB [2021] UKSC 52 set out that an assessment of capacity requires the court to address two questions. Firstly, whether P is unable to make a decision in relation to a particular matter and secondly, whether that inability is caused by an impairment of or disturbance in the functioning of P’s mind/brain.

In Thirumalesh Chellamal Hemachandran and another -v- Sudiksha Thirumalesh and another [2024] EWCA Civ 896), the Court of Appeal held that: “where there is an objectively verifiable medical consensus as to the consequences of having or not having medical treatment, if the patient does not believe or accept that information to be true, it may be that they are unable to understand and or use and weigh the information in question”.

Judgment

The Judge accepted that all three grounds of appeal had been established.

  1. On the first ground of appeal, it was accepted that the “Judge fell into error when he set the bar too high in considering the relevant information for CT, in particular that CT’s mental impairments are relevant information that he needs to understand and use and weigh.” It was determined that the Judge had “conflated the two-stage test set out in JB and by doing so, created a circular approach that risks leading to the inevitable conclusion that those who have a mental impairment lack capacity.”
  2. On the second ground of appeal, the court determined that the two-stage test in A Local Authority v JB [2021] UKSC 52  is clear and that the Judge “had conflated and risked blurring the two distinct tests.”
  3. On the third ground of appeal, there was evidence that CT had capacity to make decisions about his residence and care. The evidence pointed towards “CT having a better understanding that his physical state had changed progressively and had insight into his increasing frailty.”

The court endorsed a checklist to assist those assessing capacity. The checklist is set out at paragraphs 60(1)-60(10) of the judgment as follows:

  1. The first three statutory principles in s 1 MCA 2005 must be applied in a non-discriminatory manner to ensure those with mental impairments are not deprived of their equal right to make decisions where they can be supported to do so.
  2. In respect of the third principle regarding unwise decisions, particular care must be taken to avoid the protection imperative and the risk of pathologising disagreements.
  3. As set out in A Local Authority v JB [2021] UKSC 52, whether the person is able to make the decisions must first be addressed. Only if it is proven that one or more of the statutory criteria are not satisfied should the assessor them proceed to consider whether such inability is because of a mental impairment.
  4. Those assessing capacity must vigilantly ensure that the assessment is evidence-based, person-centred, criteria-focussed and non-judgmental, and not made to depend, implicitly or explicitly, upon the identification of a so-called unwise outcome.
  5. Insight is a clinical concept, whereas decision making capacity is a legal concept. Capacity assessors must be aware of the conceptual distinction and that, depending on the evidence, a person may be able to make a particular decision even if they are described as lacking insight into their general condition.
  6. In some cases, a lack of insight may be relevant to, but not determinative of, whether the person has a mental impairment for the purposes of s2 MCA 2005.
  7. When assessing and determining the legal test for mental capacity, all that is required is the application of the statutory words in ss2-3 MCA 2005 without any gloss; having ‘insight’ into mental impairment is not part of that test.
  8. Relevant information will be different in each case but will include the nature of the decisions, the reason why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all.
  9. The relevant information is to be shared with the individual and the individual should be supported to understand the relevant information. The individual is not required to identify relevant information him/herself.
  10. If a lack of insight is considered to be relevant to the assessment of capacity, the assessor must clearly record what they mean by a lack of insight in this context and how they believe it affects, or does not affect, the person’s ability to make the decision as defined by the statutory criteria, for example to use/weigh relevant information.

FULL JUDGMENT

St George’s University Hospitals Foundation Trust & Anor v LV (Rev1) [2025] EWCOP 9 (T3) (28 February 2025 )

This case concerns LV, a twenty-year-old woman who is diagnosed with Anorexia Nervosa; Autism Spectrum Disorder; Severe Depression; and Anxiety.

LV is currently an inpatient on a ward in an eating disorder unit of a university teaching hospital. LV has been an inpatient in various hospital wards for the last three years. She is currently being fed through a Nano Gastric Tube however this process has been largely ineffective in providing her with nutrition, since she has developed the ability to regurgitate food whilst it is being delivered and to purge by vomiting nearly all of the reminder. In that time, LV has experienced a further loss of 15% of her body weight and the medical assessment was that in the absence of intervention, the likelihood is that LV is at risk of dying soon.

On an urgent application, the two applicant Trust applied for:

  1. a declaration that LV lacks capacity to conduct proceedings and make decisions about her care and treatment
  2. a declaration that it is lawful and in LV’s best interests to be admitted into the ICU for a period of feeding under

The Official Solicitor, on LV’s behalf, ultimately agreed with the Trust’s position.

Capacity

Dr A assessed LV as lacking capacity to make decisions about her care and treatment and to conduct the proceedings. The capacity assessment concluded that LV “was not able to weigh the information for the decision to be made for treatment based on the merits of the available options.”

Legal framework

The legal framework is outlined in detail from paragraph 21-50.

To summarise, the court applied the well-established principles for capacity in sections 1-3 of the Mental Capacity Act 2005. The legal principles for best interests are also well-established and the court had regard to the checklist of factors which are set out in section 4 of the Mental Capacity Act 2005.

Aintree v James [2013] UKSC 67 [2014] AC 591 described the questions for the court where a patient lacks capacity to consent to medical treatment, summarised as follows: “The focus is on whether it in in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it.”

It is well-known that there is a presumption in favour of life-sustaining treatment, but this presumption is not absolute. In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 it was established “there is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it.”

The case law demonstrates the importance of respecting P’s autonomy, including in decisions regarding life-sustaining treatment. Aintree v James [2013] UKSC 67 [2014] AC 591 emphasises a holistic approach to best interests, considering all medical, social, and psychological factors. It states that the “decision makers must consider what the nature of the specific treatment is, what the treatment involves and the prospects of success, what the outcome of that treatment for the patient is likely to be, what P’s  attitude to the treatment is or would be likely to be, and they must consult those involved in P’s care or interested in their welfare.”

Judgment

The Judge accepted Dr A’s report and determined that LV lacks capacity to consent to treatment and to conduct proceedings.

The Judge was of the view that the wider picture informed her of LV’s wishes and feelings, primarily that she wished to die, however, she concluded that her wishes and feelings are more nuanced than they appeared before detailed consideration. The court considered LV’s family members and professionals interpretation of her behaviour. Within LV’s mother’s evidence, she stated that aspects of her behaviour are not consistent with someone who holds no hope for a future life and thus no interest in her future. She informed the court that LV expresses a strong wish to continue to go home to see her family, planting seeds to grow plants and a wish to water them to check on their growth and that she asks for materials to future projects to gift to family members. Dr B and Dr A (consultant psychiatrists in the case) also noted LV’s interest in other possible treatment, notably Ketamine, which was regarded as a positive indicator of LV’s wish to get better. The Judge considered that evidence when thinking about LV’s repeated wish to die and she was satisfied that she should not take LV’s expression that she wishes to die as indicative of her wishes.

The Judge balanced the risks of the proposed treatment plan against what she contemplated as her “imminent death.” The Judge understood why the option was sedation for feeding was the last resort given the significant risks involved and the understanding that there is much that is left to the unknown. The Judge took into consideration LV’s current situation that she currently starving to death and is currently being ‘force-fed’ twice a day that is “achieving nothing.” The Judge concluded due to the urgency of LV’s situation and the precarious nature of LV’s circumstances, that the declarations sought should be made and that it is in LV’s best interests to undergo admission to the ICU for a period of feeding under sedation.

FULL JUDGMENT

AECO, Re [2025] EWCOP 5 (T2) (04 February 2025)

This case concerns AECO, an individual with a diagnosis of Retts Syndrome as well as other mental and physical disabilities. The public guardian applied to the court to discharge JO, AECO’s mother, from her role as deputy for her property and affairs due to JO not being able to fulfil her duties.

JO had been AECO’s deputy since 24 June 2014. The public guardian raised six concerns about JO’s conduct of her deputyship as follows:

  1. Failure of reporting
  2. Failure to pay the supervision fee as it fell due
  3. Mixing money that belonged to AECO with her own
  4. The occupation of AECO’s property
  5. Concerning transactions including transfers to JO and her son
  6. Lack of cooperation with professionals and the public guardian.

The court asked JO about the public guardian’s six concerns:

  1. JO accepted that she did not file annual supervision reports on time or that she did not file them at all. JO accepted that the most recent report for the period was not filed on time and did not contain all the documentation sought by the public guardian.
  2. JO accepted that she did not pay the fees as required.
  3. JO accepted that she mixed AECO’s funds with her own as JO received AECO’s money and made payments on her behalf through her own account.
  4. JO accepted that she and her son have stayed for extended periods in AECO’s property since early 2020 and she owes AECO approximately £10,000 in this respect.
  5. A full set of JO’s bank statements were not provided to the court however it did appear that large sums had been paid to JO and her son.
  6. JO accepted that she lacked co-operation with professionals and the public guardian .

Legal framework

The public guardian asked the court to revoke the appointment of JO as deputy on the basis that she “has contravened the authority conferred on her and that it is not in AECO’s best interests for her to continue as deputy under s16(7) and s16(8) of the Mental Capacity Act 2005.”

CL v Swansea Bay University Health Board [2024] EWCOP 22, states that ‘the court has an unfettered power to remove a deputy where it is in a protected party’s best interest to do so.”

Judgment

The Judge concluded that:

  1. JO failed to file reports as required and that the reports were always very late.
  2. JO failed to pay the supervision fees.
  3. JO allowed AECO’s funds to become mixed with her own.
  4. JO and her son occupied AECO’s property without contributing to the costs incurred and putting the property at risk.
  5. The Judge concluded that he was not going to make specific findings but there are transactions which require further investigation.
  6. JO has failed to co-operate with the reasonable requests of the public guardian and the interim deputy.

The Judge concluded that JO had been unable to fulfil the duties of a deputy for property and affairs and that her failures led the court to conclude that it is in AECO’s best interests to remove JO as her deputy. The court appointed a professional deputy to be deputy for AECO’s property and affairs on a final basis.

FULL JUDGMENT

Niamh Brennan is a pupil barrister at Spire Barristers.