In this conversation, I talk to Dr Chloe Beale about the uses and misuses of capacity in the context of responding to suicide risk.   Warning, we do get quite deep into the issues involved. The pap…

As part of the Mental Health & Justice project, a new website has been launched with guidelines for clinicians and social workers in England & Wales (but also of interest to others, such as…

The Government has today (16 July) announced that the LPS would not be coming into force on 1 October 2020, but instead in April 2022.   It has been clear for some time that 1 October was not just …

In E (Vaccine) [2021] EWCOP 7, the Vice-President of the Court of Protection, Hayden J, has given the first reported judgment on capacity and best interests in relation to the COVID-19 vaccine.  Wh…

The DHSC has published the second of its LPS updates on 28 September; it can be found here.   It includes a number of important updates, including that “to ensure that the principles of the M…

R (JJ) v Spectrum Community Healthcare CIC [2023] EWCA Civ 885, a decision of the Court of Appeal handed down on 25 July 2023, raises stark issues about the limits of autonomy in healthcare decisio…

Baroness Sheila Hollins has published her final report as Chairperson of the Independent Care (Education) and Treatment Review (IC(E)TR) programme for people with a learning disability and autistic…

With thanks to Victoria Butler-Cole QC, upon whose excellent 2013 work we have built, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and I have produced…

In Pennine Acute Hospitals NHS Trust v TM [2021] EWCOP 8, Hayden J considered an urgent application made by the Pennine Acute Hospitals NHS Trust in respect of a male patient, TM. It was not possib…

I have recorded a short video (with slides) about DNAPCR and advance care planning, in the hopes that it will assist people to get the law right in this area (this is an updated (March 2021), versi…

In a letter sent on 16 December 2021 by DHSC, it has been confirmed formally that the implementation date cannot be April 2022.  In relevant part it reads: As you know, we are working hard to launc…

In a decision which will trouble many (for instance the Joint Committee on Human Rights: see its 2022 report on human rights in care settings), has “deeply disappointed” Welsh Government, perhaps s…

Hayden J had the chance in Re RN [2022] EWCOP 53 to put comprehensively to bed a suggestion that it is striking (to put it neutrally) that any lawyer could have considered advancing in 2022.  The c…

Set out below is a rapid reaction overview of the MCA Code / LPS implementation consultation, the walkthrough being here. On 17 March 2022 the DHSC published, on its own behalf, and that of MOJ and…

In the Queen’s Speech today (10 May 2022), it was announced that draft legislation would be brought forward to reform the Mental Health Act in England & Wales.   The background notes to t…

This article to which I’ve contributed in the International Journal of Law and Psychiatry is now available (in pre-proof) form here.  It is also available (for free) from ResearchGate in pre-…

The recording is now available of the webinar held by the Law Society of England and Wales on 7 October 2020 marking 15 years since the enactment of the MCA 2005.  It features contribution by Dr Lu…

The Supreme Court has clarified one aspect of the perennially thorny question of responsibility for funding after-care under s.117 MHA 1983.  In R (on the application of Worcestershire County Counc…

We are a leading set of barristers` chambers based in London, Manchester, Singapore and Kuala Lumpur. We offer a depth of expertise in a variety of specialist legal sectors and practice areas.

Following a commitment given in the Queen’s Speech in May 2022, a draft Mental Health Bill has been brought forward today (27 June 2022).   It contains 49 clauses and 3 schedules, accompanied by ex…

The MCA 2005 came into force 14 years ago today, 1 October 2007.   To mark its birthday, I’ve recorded a top 10 Court of Protection cases video. The slides accompanying it (with hyperlinks to…

In Cheshire West And Chester Council v PWK [2019] EWCOP 57, Sir Mark Hedley had to consider (in the context of a s.21A challenge) whether a young man, PWK, had capacity to make decisions in relatio…

Responding to the recent flurry of case-law about the use of the inherent jurisdiction in relation to adults, I, together with others on the 39 Essex Chambers Court of Protection team, have produce…

In Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), handed down on 22 January 2021, the Divisional Court held that “the phrases “personally seen” in s. 11(5) MHA 1983 and “personally exa…

I reproduce the material text below of the most recent LPS update circulated on 10 March 2022. Dear LPS Stakeholders, It’s been a few months since we last issued our LPS newsletter and in that time…

You will, I’m sure, have seen the December Mental Capacity Report which came out last week: if not, you can find it here, and sign up for future issues here.   Since it went to press, there h…

For several days, the case of Archie Battersbee has been a lead story in the media in England & Wales.   At the time of writing (3 August 2022), the final judicial word appears to have been had…

We are a leading set of barristers` chambers based in London, Manchester, Singapore and Kuala Lumpur. We offer a depth of expertise in a variety of specialist legal sectors and practice areas.

Is depriving a person of their mobile phone depriving them of their liberty?   That was the very 21st century question confronting MacDonald J in Manchester City Council v CP & Ors [2023] EWHC …

In this conversation, I talk to Dr Chloe Beale about the uses and misuses of capacity in the context of responding to suicide risk.   Warning, we do get quite deep into the issues involved. The pap…

The Supreme Court has for the first time looked in detail at what it means to have or lack capacity to make a decision, and has done so in a very high-stakes context: that of sexual relations.  In …

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On this page, you can find my shedinars, which are divided into: (1) Introductions to key elements of mental capacity law (2) ‘In conversation’ with relevant – and interesting …

An article written by me, “Capacity in the time of Coronavirus,” is now available in the International Journal of Law and Psychiatry’s Special Issue: “Mental health, mental …

The Court of Appeal in A Local Authority v JB [2020] EWCA Civ 735 has made clear that we have been asking the wrong question in relation to sexual relations.   The issue arose in the context of pro…

Our guidance note has been updated to reflect the decision of the Supreme Court in JB, as well as other recent case-law.  We have also taken the opportunity to update and expand our guidance note o…

The frankly astonishing case of LB Barnet v JDO & Ors [2019] EWCOP 47 reads as an object lesson in how not to make an application to the Court of Protection to authorise deprivation of liberty.…

Juggling the twin demands of sabbatical and my conscience, I am going to do a video (or two) about key aspects of the consultation and the LPS.   To make sure that it’s as useful as possible,…

Thank you to everyone who has commented in different ways that you have found my lockdown offerings from the shed useful.  I have now pulled everything together in one page (which I’ll keep u…

In BP v Surrey County Council & Anor [2020] EWCOP 17, Hayden J had to grapple with the impact of COVID-19 in the care home setting. The urgent application arose in the context of an existing s.…

Warrington Borough Council v Y & Ors  [2023] EWCOP 27. This application concerned Y, who was in her early twenties.  Y had been diagnosed with autistic spectrum disorder as a child. Her educati…

When should refusal of treatment by someone under 18 be determinative?   For many years, it had been thought that the Court of Appeal had resolved this question in two decisions in the 1990s: In re…

The DHSC has today (11 June 2021) published 6 more factsheets about the LPS 1. Liberty Protection Safeguards: criteria for authorisation (June 2021) 2. Liberty Protection Safeguards: the appropriat…

A discussion about care homes refusing to enter residents on the electoral register on grounds that they lack mental capacity to vote on the (brilliant) Mental Health Law Online discussion list pro…

The 39 Essex Chambers Guide to carrying out and recording capacity assessments has been updated, in particular to add a section about remote assessments, and also to reflect the new approach to thi…

In this shedinar, Dr Camilla Parker and I discuss the complexities of the law relating to deprivation of liberty in this area, and go through the practice guidance we have produced for Research in …

The background briefing notes to the King’s Speech on 7 November 2023 confirmed by their silence that which was increasingly feared, namely that the Government has no present intention of taking fo…

The DHSC published on 25 June 2021 (on a page to be populated with more detail on a rolling basis) details of two English implementation support programmes for LPS. 1. Local Government Implementati…

NEVER STOP LEARNING ABOUT MENTAL CAPACITY: The National Mental Capacity Forum is pleased to announce the launch of a second series of National Mental Capacity Webinars, produced in collaboration wi…

Strasbourg 02/04/2020

In England and Wales, the concept of mental capacity is codified in the Mental Capacity Act 2005 (MCA).  Central to this concept is the functional test – whether the person can understand, retain, …

There have been very few cases concerning the meaning of deprivation of liberty in the context of adults since the immediate flurry of post-Cheshire West activity and the decision of the Court of A…