Shift from surviving to thriving with pain coaching

Welcome to the October 2025 Mental Capacity Report. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: time-specificity of capacity (again), a Welsh primer on key caselaw and urban myths around s.4B MCA 2005; In the Property and Affairs Report: two guest articles from new members of the Court of Protection on attorney elephant traps;

[I set out here a press release from the Office of the Public Guardian - the 'clarification' relates to a consent order, rather than a judgment.  If / when the consent order is made public I will add it to this page] On 18 July 2025, the Court of Protection clarified how vehicle contracts under the Motability Scheme should be handled when arranged by a deputy.

As many will know, by contrast to the position in England and Wales (and indeed Scotland), moves towards legislating for assisted dying / assisted suicide are being taken forward in Jersey as Government legislation.  The draft Bill has now been published, and the draft with its accompanying report should, I suggest, make mandatory reading for Parliamentarians in 'mainland' UK jurisdictions. 

By accident or design, Poole J appears to have found himself the Tier 3 transparency guru.  In Re Gardner (Deceased)(Duration of Transparency Order) EWCOP 34 (T3) he made a range of important observations about (and in passing raised some questions about) the operation of the transparency framework within the Court of Protection. As Poole J identified at the outset: 1. This is the third judgment I have published in these proceedings.

In this 'in conversation with,' I talk to Professor Peter Bartlett about his article "Beyond the liberal subject: challenges in interpreting the CRPD, and the CRPD’s challenges to human rights," and discuss how the CRPD challenges conventional civil and political rights, the implications for the role of the state (and what happens if the state is not benign), and what the CRPD requires of civil society.

I was contacted, again, by a health care professional who had been told with complete confidence that the new version of s.4B MCA 2005 included in the Mental Capacity (Amendment) Act 2019 was in force.  This, in turn, meant that they had been told with complete confidence that it was possible to deprive someone of their liberty in an emergency where they lacked capacity to consent to the steps required to provide them with life-sustaining treatment, or to prevent a serious deterioration in their confidence, and to rely in so doing on the protections contained in s.4B.

Darlington Borough Council v AW & Ors EWCOP 33 (T3), decided in August 2025, but only published more recently, is another in a now near-continuous stream of cases grappling with complexities of applying the time-specific MCA 2005 in real life. The facts of the case are disturbing, both in the depths of the despair that they illuminated on the part of the young person involved, and also for the fact that they are by no means uncommon. 

TIRE v Carmarthenshire County Council EWCOP 81 (T2) is, as far as I know (but we would welcome correction) the first published judgment from the Court of Protection in Welsh (although many will have been delivered orally).  As this Practice Direction makes clear,  Court of Protection proceedings in or having a connection with Wales must be conducted on the basis that the Welsh and English languages are treated on the basis of equality.

The Law Commission’s Disabled Children’s Social Care project – on which I was a consultant – published its final report on 16 September.  Having now partially reclaimed the shed from its use as a furniture store, I have done a walkthrough of the recommendations.  It is a personal view, but may hopefully shed light on some of the thinking behind the 40 recommendations made, and - more to the point - encourage you to read the full report in all its glory.

The new (2025, 5th) edition of the Court of Protection Handbook is now available, and accompanying website has been updated (not least to reflect the new jazzy green cover). Amongst other delights are: (1) an updated sample chapter (5) on whether making an application is appropriate; (2) updated sample pre-issue letter, witness statement, position statement and letters of instruction to an independent social worker and an independent psychiatrist;

As some may know, I am a member of the Complex Life and Death Decisions Group (CLADD).  CLADD is a King’s College London based group with expertise in psychiatry, palliative care, bioethics, public policy and law.  Together with Professor Gareth Owen and Professor Katherine Sleeman, also CLADD members, we have prepared a briefing on the Terminally Ill Adults (End of Life) Bill.

The recommendations in our report provide a comprehensive set of reforms to disabled children’s social care law. The reforms we recommend represent the most substantial change to this area of law since the Children Act 1989. The objective of our recommendations is to make the law clearer, simpler and fairer. Taken together, the reforms should provide a more modern legal framework, better suited to meeting the specific needs of disabled children and their families.

The Law Commission of England & Wales published its 14th programme of law reform on 4 September - i.e. its proposed plan of work for the years ahead.  It includes ten new projects (alongside existing projects such as Disabled Children's Social Care, on which I was a consultant; the final report for which should be out shortly).  These range widely over such matters as consent in the criminal law, public sector automated decision-making, deeds and the defence of insanity. 

The September 2025 Report is now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: an update on Cheshire West 2, non-withdrawal of treatment in two very different contexts and SCIE sounds the alarm; (2) In the Property and Affairs Report: the OPG annual report and increases to LPA fees; (3) In the…

The Social Care Institute for Excellence is not normally an alarmist body, which makes its recent (26 August 2025) statement on MCA reform all the more striking.  I reproduce the material sections below: Failure to act on long-delayed reforms to the Mental Capacity Act is contributing to preventable deaths, unlawful detentions and growing human rights concerns. The Mental Capacity Act (MCA) is the legal foundation for decisions made on behalf of people who cannot decide for themselves, because of dementia, learning disability, brain injury or serious illness.

The flipside of the intense focus on the wishes, feelings, beliefs and values of the person required by s.4 MCA 2005, as clarified by the Supreme Court in Aintree v James, is that there may be situations in which, objectively, a person’s medical situation might appear hopeless, but nonetheless continued treatment is in their best interests.  Such a case is that of…

Patricia's Father & Ors v Patricia & Ors EWCOP 30 (T3) is a challenging case at a number of levels, over and above the human tragedy at the centre of it. Procedurally, it highlights the pitfalls of identifying the point at which a decision made by the Court of Protection needs to be revisited because it is harming, rather than helping.

For years, lawyers and clinicians have thrown around the term ‘Gillick competence’ as if it were a universal test to apply to analyse the decision-making abilities of children.  More recently,  they have largely limited themselves to throwing the term around in relation to the decision-making abilities of children under 16, looking instead (in England & Wales) to the Mental Capacity Act 2005 for those aged 16 and over.

The Court of Protection on occasion has to deal with those who are determined to stymie its jurisdiction.  In Kirk v Devon County Council EWCA Civ 34, Sir James Munby, through gritted teeth, accepted that the end of the line had been reached in relation to a P who had been abducted to Portugal.  In Re AB & Ors EWCOP 27 (T3)

In Leeds and York Partnership NHS Foundation Trust v FF & Anor EWCOP 26 (T3), McKendrick J made some very helpful observations about 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.  

These Rules were laid before Parliament on 15 July, 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 EWCOP 29. Rule 3 amends rule 4.1(4) of the 2017 Rules to remove a defunct cross-reference.

The July 2025 Mental Capacity Report is now out.  Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: what to do when an advance decision to refuse treatment may be in play, and the consequences of the gaps between services for those with disordered eating; (2) In the Property and Affairs Report: capacity in the rear view mirror: how does the presumption work?;