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Public Law Newsletter: April 2024




Public Law Newsletter April 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


A Hospital Trust v CP & Anor [2024] EWCOP 7

Capacity to decide on obstetric care and best interests when giving birth.


This matter concerned CP, a 30-year-old woman who has schizophrenia, most likely of a hebephrenic or disorganised type. At the time the judgment was delivered, CP was detained under section 3 MHA 1983. She has been detained since August 2023, and at the time the judgment was delivered she was 36-weeks pregnant, due 29th February 2024.

The application was made by the Hospital Trust, for declarations and orders to allow a planned caesarean section on 14th February 2024.

legal framework:

The judge considered the legal framework as outlined at paragraphs 40-50. To summarise:

  • An adult of sound mind is entitled to make decisions about medical treatment, even if those decisions lead to harm or death (Re F).
  • Treatment can be imposed without consent if the person lacks capacity under the Mental Capacity Act (MCA).
  • Capacity is assumed unless established otherwise, and the burden of proof is on the party asserting a lack of capacity.
  • Determination of capacity is decision-specific and time-specific, assessing the person’s ability to make a decision at the material time.
  • A person lacks capacity if, at the material time, they are unable to make a decision due to an impairment or disturbance in the mind or brain (diagnostic test).
  • Fluctuation in capacity requires assessment at the specific time a decision needs to be made.
  • All practicable steps must be taken to help the person make a decision, and making an unwise decision does not imply lack of capacity.


The judge met with CP herself and she outlined to the judge that she wanted a pre-arranged caesarean and a spinal block so she could be present for the birth, something the judge thought was a reasonable and good reason. CP expressed a strong desire to leave her current hospital due to finding its confinement traumatic. However, she failed to disclose to the judge a previous incident of leaving the hospital without permission. CP’s motivation to move to an acute hospital sooner than planned appeared to be related to the more lenient smoking and vaping policies at the new facility. Despite CP’s wish to expedite the move, it was not feasible, and the initially arranged schedule remained unchanged. As a result, CP’s desired outcome was not achievable, and it was not pursued on her behalf.
The issues the judge had to determine were as follows

  • Should CP’s parents be made parties to these proceedings?
  • Does CP have the capacity to make decisions about her obstetric care and treatment, including a pre-arranged caesarean section?
  • If not, what orders should the Court make in respect of her treatment?
  • If the court decided that a pre-arranged Caesarean section is in CP’s best interests, is it in her best interest to have a spinal block or a general anaesthetic?

Whilst all issues were agreed by the end of the hearing, Mrs Justice Henke handed down this judgment due to the “given the serious nature of the issues and given that CP and her baby may in due course want to know why the plan was endorsed”.

The judge considered the question of a natural birth or pre-arranged c-section at paragraph 51-61. She outlined that all treating clinicians consider that a pre-arranged caesarean is in CP’s best interests.

The type of anaesthesia was also considered and the judge noted that all treating clinicians considered a spinal block was the least restrictive approach with fewer potential complications.


The judge considered that:

  • CP’s parents should not be joined as parties to the application
  • Pursuant to section 15 MCA 2005, CP lacks the capacity to conduct these proceedings and make decisions regarding her obstetric care, anaesthesia and ancillary care and treatment.
  • Pursuant to section 16 MCA 2005, it is lawful and in CP’s best interests to receive the care and treatment within the filed care plan.

She outlined that the care plan that has been placed before the court for CP will be managed by experienced professionals with knowledge of CP’s case and her physical and mental health needs.


EE (Capacity: Contraception and Conception), Re [2024] EWCOP 5

Capacity around contraception, sexual relations and contact with others


This judgment pertains to a 31-year-old woman (‘EE’) who suffers from Tuberous Sclerosis and various mental health conditions. The court needed to determine her capacity to make decisions about engaging in sexual relations, contact with others, and contraception. EE’s medical conditions, including autistic spectrum disorder (ASD), learning disability, and psychotic disorder, are considered. While there is agreement on her capacity for sexual relations and lack of capacity for contact decisions, there is disagreement on her capacity regarding contraception.

legal framework:

The court considered the importance of the specific factual context in decision-making, as seen in decisions related to sexual relations (A Local Authority v JB [2021] UKSC 52) and contact with others (LBX v K [2013] EWHC 3230 (Fam)). The court also considered the relevant information for capacity assessments in the context of contraception decisions, cautioning against setting the bar too high and emphasising the need to focus on immediate medical issues. The court references previous cases to guide the assessment of capacity, providing a comprehensive overview of the legal precedents involved.


Sexual relation and contact with others

The court considered the expert evidence. Dr. Todd and the parties agree that EE has the capacity to make decisions regarding engaging in sexual relations. While acknowledging the possibility of including risks to the woman and her baby in certain cases, the case considers the practical limits on what an individual should be expected to foresee as reasonably foreseeable consequences. The court concludes that requiring EE to envision risks to herself or her potential baby resulting from pregnancy would exceed practical limits, given the absence of evidence indicating serious or grave risks. The case reaffirms EE’s capacity to decide on engaging in sexual relations, based on Baker LJ’s outlined relevant information in the JB case. However, EE is found to lack capacity in decisions about contact with unfamiliar individuals, attributed to her inability to weigh risks, as evidenced by her exposure to potential harm and exploitation. The case considers the consistency of positions on EE’s capacity for sexual relations and contact decisions and supports an approach of positive risk-taking with appropriate interventions to protect her well-being.

Contraception and Conception

The court considered the evidence of Dr Todd in respect of contraception of conception. Dr. Todd asserted that EE has the capacity to decide on contraception but lacks the capacity to make decisions about conceiving or becoming pregnant. The court considers whether these are distinct decisions and explores the alleged deviation in Dr. Todd’s second addendum report from his instructions. The court decided not to frame the matter as EE’s capacity to conceive but rather as her capacity to use contraception. The judge emphasised the importance of practical limits and the need to avoid setting the bar too high for decision-making capacity. The court rejected certain factors, including risks to EE’s mental health and the potential effects of medication on her baby, as relevant information for the decision about contraception. The court ultimately found that EE has the capacity to make decisions about the use of contraception as per the report provided by Dr. Todd.


The court concluded that EE has the capacity to make decisions about the use of contraception. This decision aligns with the earlier findings that EE has the capacity to engage in sexual relations but lacks capacity to make decisions about contact with unfamiliar individuals. As per his agreement with EE, the judge outlines that he agreed to write a letter to EE explaining the decisions made, acknowledging that while some may consider her decisions unwise, it is not the court’s role to advise or intervene in the autonomous decision-making of a capacitous adult regarding sex or contraception. The court notes that even capacitous individuals make unwise decisions in these matters, but such decisions are not within the jurisdiction of the Court of Protection.


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