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Public Law Newsletter: March 2024




Public Law Newsletter March 2024; with case updates within the Court of Protection and other Public Law matters.


Edited by Holly Littlewood and Aaqib Javed. Written by Lauren Gardner and Eleanor Suthern.



Legal and social care professionals often grapple with the interplay between the Mental Health Act 1989 (MHA) and the Mental Capacity Act 2005 (MCA) when dealing with patients who are detained or deprived of their liberty.


Lauren Gardner sets out the key differences between the MHA and MCA5 and explains when they should be used to authorise a deprivation of liberty.

Read on


DY, Re (Capacity) [2024] EWCOP 4 (30 January 2024)

Factual Background:

This case involved an application for personal welfare orders under s.16 of the Mental Capacity Act 2005 for a 20-year-old woman named DY, who was expecting her first child in January 2024. The central issue was whether DY has gained the capacity to make decisions about her residence, care, and contact.

DY’s background includes chromosomal duplicities, foetal alcohol spectrum disorder, and a moderate learning disability. Legal proceedings were initiated in 2020, involving consideration of DY’s move to supported accommodation and various court orders addressing her capacity in different areas. The court had previously determined DY’s capacity to engage in sexual relations in a 2021 decision. DY’s capacity for a tenancy at X was recognized in April 2022. Injunctions were imposed against her former foster carer, Mr Z, due to suspected abuse. A final order in December 2022 affirmed DY’s capacity for contraceptive decisions.

Assessments continued in relation to DY’s pregnancy, aiming to secure her autonomy and baby’s welfare. A parent and baby unit had been arranged for DY and her boyfriend once the baby was born.

DY’s capacity was reassessed in September 2023 and it was concluded that she lacks capacity. The proceedings were to consider DY’s best interests, particularly with the impending birth of her child in January 2024, assessing her capability to care for the baby and potential accommodation options. However, professional discussions led to an addendum report asserting DY’s capacity in decisions about residence, care, and contact.

Evidence from DY’s social worker and a consultant psychiatrist, Dr Camden-Smith, was considered, leading the court to consider whether DY now possesses the capacity in question.

The Law:

Section 1 of the Mental Capacity Act (MCA) outlines principles for capacity assessment, emphasising the presumption of capacity unless proven otherwise. The Act states that a person should not be considered as lacking capacity unless all reasonable efforts to help them decide have been attempted, and making an unwise decision does not indicate incapacity. Capacity is context-specific, evaluating an individual’s ability to make a decision at a given time.


According to section 2 of the MCA, a person lacks capacity for a particular area if, due to an impairment of the mind or brain, they cannot understand, retain, use or weigh relevant information, or communicate the decision. The court, following the Supreme Court’s guidance in North Bristol NHS Trust v R [2023] EWCOP 5, must identify the specific matter, evaluate relevant information, and determine if incapacity results from a mind or brain impairment.


When identifying the relevant information, it is essential not to overload the assessment with peripheral details, and it must focus on salient factors. LBX v K, L and M [2013] EWHC 3230 (Fam) provides guidance on relevant information for residence, care, and contact decisions.


The case of AMDC [2020] EWCOP 58 highlights issues relating to expert assessments. Experts must provide evidence of information given to the individual, explain any changes in opinions, and detail the basis for conclusions. The court suggested that any lack of engagement from the individual should prompt alternative strategies to facilitate understanding. The expert’s report should clearly state opinions, provide reasoning, and document attempts to engage the individual in decision-making.

Crucially, if the court concluded that DY did have capacity, the Court of Protection would cease to have jurisdiction.


The court considered the capacity evidence.

Dr Camden-Smith had conducted multiple capacity assessments of DY. In her initial report from December 2020, she determined that DY lacked capacity in various aspects due to cognitive deficits stemming from a learning disability and developmental trauma. DY struggled to comprehend information related to legal proceedings, care decisions, and risks associated with her vulnerabilities. Dr Camden-Smith emphasized the role of cognitive deficits resulting from DY’s learning disability and developmental trauma in her incapacity.
In a subsequent report in October 2021, Dr Camden-Smith noted that DY’s diagnoses remained unchanged, but there was a veneer of social competence concealing persistent understanding challenges. DY’s lack of capacity extended to decisions about residence and care despite her interactions with professionals over the years.

However, a more recent report in November 2023 documented positive changes in DY’s life, including her move, pregnancy, and improved engagement with support staff. Initially, Dr Camden-Smith maintained her findings of incapacity, especially regarding proceedings, residence, care, and contact decisions. However, after consulting DY’s social worker, she revised her opinion in an addendum report, indicating that DY now had the capacity to decide on residence, care, and contact.

The court critically assessed the assessment process and content. The court acknowledged challenges in the clarity of instructions, DY’s defensive demeanour, and the difficulty in assessing her capacity. The court recognised the appropriateness of steps taken post-November 2023, including discussions with DY’s social worker. The Judge concluded that the statutory presumption of capacity was not rebutted and that DY has capacity at present to make decisions about her residence, care needs and contact with others. The court emphasised the need for careful consideration in capacity assessments, particularly when opinions differ from earlier assessments.

The Judge did acknowledge that she shared concerns of others that DY may lose capacity in the future, however the Judge considered that was not appropriate to make anticipatory or contingent declarations in the circumstances of this case as she could not predict how DY will respond to the birth of her baby and the stresses of living in a parent and baby unit. However, the Judge recognised that a later Court of Protection application may be necessary in these circumstances.

Full Judgment

King’s College Hospital NHS Foundation Trust & Anor v TTN (Medical Treatment: Retinal Detachment) [2024] EWCOP 1 (17 January 2024)

Factual Background:

This case was a court application involving TTN, a 73-year-old man currently admitted under section 3 of the Mental Health Act 1983 with history of treatment-resistant schizoaffective disorder. The issue revolved around TTN’s recent and profound sight loss in his right eye, diagnosed as a detached retina. After this was formally diagnosed, attempts were made to work with TTN to achieve further assessment and treatment; however, given TTN’s objections, grounded in cultural considerations and suspicions of intelligence agency affiliations with the hospital, it became necessary for the applicants to seek court authorization for a vitrectomy procedure aimed at rectifying the detached retina.

The orders sought included declarations of TTN lacking litigation capacity and capacity to decide on the vitrectomy, and the lawfulness of the proposed treatment plan, and the authorization for the use of sedation and restraint if deemed necessary.
The court heard evidence from Dr B, consultant psychiatrist, who was of the court that TTN cannot fully understand, use or weight the relevant information.

Turning to best interests, the proposed plan for TTN involved relocating him to a nearby ward before transferring to hospital for eye surgery. To ensure his cooperation, TTN would be sedated with ketamine. After arriving at the hospital, it was likely that he would undergo general anaesthesia for eye examination and potential surgery. Post-surgery, sedation will be maintained for a smooth return to the mental health ward. Dr A gave evidence on the procedure and explained what it would involve and explained that a detached retina is usually a medical emergency as the longer the retina is detached from the supporting tissue the harder it is to re-attach it, and the worse the prognosis.

The Law:

Guiding the legal determination in this matter was of course the Mental Capacity Act 2005, which delineates the criteria for establishing capacity and the principles governing the court’s assessment of an individual’s best interests. Of central relevance in this case was the presumption of capacity, the obligation to provide support for decision-making, and the consideration of past and present wishes.


The Judge was satisfied that TTN lacked capacity to make the decision about retinal surgery. Turning to best interests, the Judge conducted an assessment of the proposed procedure, considering its potential benefits and associated risks. Dr A’s expert opinion, endorsing the vitrectomy despite acknowledging the prognosis, was carefully weighed against potential complications such as detachment failure, infection risks, and anaesthesia-related concerns.

The Judge ultimately authorised the vitrectomy, emphasising its potential benefits, and authorised the deprivation of TTN’s liberty through the proposed sedation and restraint measures, if deemed necessary, to facilitate the vitrectomy.


GUP v EUP & Anor [2024] EWCOP 3 (25 January 2024)

Factual Background:

The application related to the medical treatment of EUP, an elderly woman in her late eighties.


Medical issues, including severe strokes and osteoarthritis, had greatly impacted EUP’s health. Following strokes in October and November 2023, she experienced declining neurological function. Despite treatment efforts, including a stenting procedure, there had been little improvement, and EUP’s condition continued to deteriorate.


There was a divergence in views between the family and medical professionals. EUP’s son, GUP, and other family members expressed resistance to the hospital’s palliative care plan, believing that EUP would want every effort made to prolong her life. However, medical experts and the Official Solicitor argued that continued nutrition and hydration were only prolonging EUP’s suffering without offering any meaningful benefit.

The Judge stated that EUP’s lack of capacity to make medical decisions was evident, as there had been no observed interaction with her environment or ability to communicate verbally.


In terms of best interests, several medical consultations confirmed the prognosis with unanimous agreement that further interventions such as feeding tubes would not be beneficial and could cause harm. Despite family members advocating for nutrition, the medical experts emphasised the futility of such measures given EUP’s irreversible neurological damage. Intravenous fluids had been provided to EUP to maintain hydration and alertness, but they had also led to complications such as limb swelling and potential lung issues. The medical consensus was that EUP is in the final stages of life, and efforts should focus on ensuring her comfort and dignity rather than prolonging her suffering. GUP disagreed with the medial consensus and did not support a move to palliative care.


The Law:

The legal framework surrounding medical treatment and decision-making encompasses a balance between medical expertise, patient autonomy, ethical considerations, and legal obligations. In essence, doctors are tasked with offering treatment options to patients based on clinical judgment, after which patients have the right to accept or refuse treatment, even for reasons that may seem irrational. This principle was elucidated in the case of Burke v General Medical Council, where the Court of Appeal outlined the process wherein doctors propose treatment options, patients make informed decisions, and doctors subsequently administer chosen treatments.

However, complications arise when patients lack the capacity to consent to treatment. In such cases, the Court of Protection, empowered by the Mental Capacity Act (MCA) of 2005, intervenes to determine the individual’s capacity and make decisions in their best interests.


Notably, there is a presumption in favour of life-sustaining treatment, but this presumption is not absolute. In Re F (Mental Patient: Sterilisation), it was established that while there is a strong presumption in favour of preserving life, there are circumstances where it may not be in the patient’s best interests to receive life-sustaining treatment. Baroness Hale emphasized the individualised nature of such decisions, highlighting the need for a case-by-case analysis rather than the application of general principles.

The principle of human dignity underpins these legal considerations, emphasising the intrinsic value of each human being. Respect for personal autonomy is paramount, requiring a thorough examination of the individual’s circumstances and preferences. This principle guides the framework of the MCA and informs decisions made by healthcare professionals and the courts.

When determining a person’s best interests under the MCA, various factors must be considered, including past and present wishes, beliefs, values, and input from caregivers. The MCA provides safeguards for carers acting in the best interests of those lacking capacity and grants the Court of Protection authority to make decisions regarding personal welfare and treatment.

The MCA’s Code of Practice offers guidance on decision-making concerning life-sustaining treatment, emphasizing the centrality of the individual’s best interests and the importance of respecting their wishes and values. Healthcare professionals are instructed to consider all reasonable steps to prolong life but may withhold or withdraw treatment if it is deemed futile or overly burdensome, always ensuring decisions are not motivated by a desire to hasten death.



The Judge acknowledged the family’s love and concern for EUP but emphasised the importance of prioritising her comfort in her final days. The Judge concluded that the balance of EUP’s best interests lie in palliative care to ensure a peaceful end to her life. The court therefore ultimately decided in favour of discontinuing artificial nutrition and hydration, as it was not in EUP’s best interests. The Judge acknowledged that EUP’s family’s efforts to contest the decision reflect the family’s deep emotional attachment, and the court acknowledged the family’s distress and the importance of their involvement in the decision-making process.


The Judge notably offered criticism of the hospital’s failure to promptly involve the court in the decision-making process, causing additional stress to the family. The court emphasised the importance of timely court intervention in cases of medical conflict, highlighting the need for transparent and collaborative decision-making between medical professionals and the court to ensure that the best interests of the patient are upheld.


X NHS Foundation Trust v RH [2024] EWCOP 150 (05 February 2024)

Factual Background:

RH was a 40-year-old man detained under section 3 of the Mental Health Act 1983 in a psychiatric hospital with diagnosis of hebephrenic schizophrenia and severe bilateral hydronephrosis. The Trust sought declarations and orders under the Mental Capacity Act 2005, asserting RH’s lack of capacity to make decisions regarding his admission, urological surgery, and litigation. They seek authorisation of RH’s admission to an acute hospital for surgery under general anaesthesia, related care, and the use of physical and chemical restraint as necessary.


RH’s medical history reveals declining kidney function and chronic urinary retention, necessitating urgent urological intervention. Despite previous plans for catheter insertion, concerns arose regarding RH’s potential to remove it, prompting a revised treatment plan involving diagnostic procedures under anaesthesia, with catheter insertion only if deemed necessary.


The proposed treatment plan aimed to address RH’s urinary issues while mitigating risks associated with his mental health condition. However, uncertainties remain regarding the necessity and feasibility of certain interventions, highlighting the complexity of balancing RH’s medical needs with his capacity and mental health considerations. The Trust asserted that the proposed treatment is in RH’s best interests, citing its potential to improve RH’s health outcomes and prevent life-threatening complications.

Dr L, RH’s treating psychiatrist, provided comprehensive evidence indicating that RH lacks capacity due to his hebephrenic schizophrenia, which causes paranoid delusions and prevents him from understanding the necessity of the proposed treatment. Dr L emphasized RH’s persistent belief that the operation aims to harm him, indicating a lack of capacity to comprehend relevant information for decision-making.


RH’s responsible clinician, Dr L, supported the proposed treatment plan, which involves exploratory surgery to identify and potentially alleviate urinary tract obstruction. Despite initial confusion, urological surgeon Mr S clarified the proposed procedure, highlighting its potential benefits in preventing kidney failure and extending RH’s life expectancy.


Both Dr L and Mr S emphasized the necessity of using restraint and sedation to manage RH’s agitation during and after the procedure, ensuring his safety and successful treatment. The multidisciplinary team, including mental health nurses such as Ms C, are trained to implement these interventions with minimal force and prioritise RH’s well-being.


RH adamantly opposed the treatment, expressing fears of kidney removal and resisting engagement with clinicians.


RH’s mother, Mrs H, was in support of the Trust’s application but chose not to be joined as a party in the proceedings. Mrs H acknowledged the necessity of the procedure to prevent further deterioration in RH’s health, despite concerns about restraint and previous traumatic experiences at the hospital.


The Official Solicitor, after initial concerns about RH’s capacity and treatment clarity, agrees with the Trust’s assessment, emphasising the need for restraint authorization to ensure RH’s safety during the procedure.


The Law:

The legal framework for assessing capacity and best interests under the Mental Capacity Act 2005 (MCA) is well-established and guided by key principles and court precedents.


Regarding capacity assessment, the Supreme Court in A Local Authority v JB emphasized the importance of identifying the specific matter in question and the relevant information necessary for decision-making. Capacity hinges on the functional elements outlined in the MCA, and the ability to use and weigh information is crucial.


In terms of best interests determination, section 4 of the MCA mandates consideration of all relevant circumstances, including past and present wishes and feelings, beliefs and values, and other factors P would likely consider if capable. The weight to be given to P’s wishes varies depending on the circumstances.


The case law underscores the importance of respecting P’s autonomy, including in decisions regarding life-sustaining treatment. Aintree University Hospitals NHS Trust v James emphasises a holistic approach to best interests, considering medical, social, and psychological factors, and consulting those involved in P’s care or interested in their welfare.


Ultimately, the focus of best interests assessment is on whether the proposed treatment aligns with P’s welfare and quality of life, as outlined in Aintree. Views of caregivers and individuals invested in P’s well-being are also crucial considerations, in accordance with section 4(7) of the MCA.


The court has determined that RH lacks the capacity to make decisions regarding his medical treatment, specifically the proposed procedure to address his urinary and kidney condition. This conclusion was based on the testimony of the medical experts who provided clear evidence of RH’s inability to understand the nature of his condition and the necessity of the proposed treatment due to his persistent delusions associated with hebephrenic schizophrenia.


Considering RH’s best interests, the court acknowledges his expressed wish to avoid the procedure but assigned limited weight to this due to its alignment with his delusional beliefs. The court emphasised the potential benefits of the treatment, including the prevention of kidney failure and premature death, outweighing the risks associated with the procedure.

The court approved the use of restraint if necessary to ensure RH’s compliance with the treatment plan, recognising it as necessary and proportionate for his safety and well-being.

Therefore, the court granted the Trust’s application, making declarations and orders under the Mental Capacity Act.


The court acknowledged the efforts of all parties involved but expresses dissatisfaction with the Trust’s handling of the application. The Judge considered that this case underscores the importance of procedural rigor and timely communication in matters involving vulnerable individuals with complex medical and mental health conditions. Despite the challenges posed by RH’s circumstances, including the urgency of his medical condition and the need for careful consideration of his capacity, adherence to procedural guidelines and the timely submission of evidence are imperative to ensure fair and just decision-making.


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