@capacitylaw.bsky.social of 39 Essex Chambers on why a decision by Lady Hale remains the vital jumping-off point for anyone wanting to ‘do’ the Mental Capacity Act 2005 properly.
A reflection on Aintree v James and best interests decision-making ⚖️
👉 swiy.co/u6Mp
#MentalCapacity
Book review: Coercive Control and Vulnerable Adults: Law and Practice under the Court of Protection and the Inherent Jurisdiction of the High Court
Book Review: Oliver Lewis, Coercive Control and Vulnerable Adults: Law and Practice under the Court of Protection and the Inherent Jurisdiction of the…
Court of Protection Handbook – April 2026 update
The quarterly update to the Court of Protection Handbook is now up, covering such matters as the flurry of cases concerning personal welfare deputies, disclosure of position statements, and the new arrangements for securing pro bono representation…
39 Essex Chambers April 2026 Mental Capacity Reports
The April 2026 Mental Capacity Report. It takes a different form to normal as our (over) commitments means that we cannot do more than provide an overview of some key matters, with more to follow (where necessary) in May. We do, however, have…
The Terminally Ill Adults (End of Life) Bill – discrimination and distortion
I have set my (excellent) Law at the End of Life students on the Medical Law MA programme at King's College London the following question: "Do the eligibility criteria for assistance in dying contained in the Terminally…
The COVID-19 inquiry – two key healthcare recommendations
I have not written much about the COVID-19 inquiry on this site. In part this is because, having been very heavily involved seeking to support clinicians and others trying to maintain some form of functioning health and social care system…
An ‘intolerable’ deprivation of liberty – and the need for reasons
No one will ever entirely fill the shoes of the late Sir James Munby, one of whose defining characteristics was a willingness to speak truth unto power, especially when it came to those who could not speak for themselves. However,…
Capacity as a social construct, and the problem of untangling the spider’s web
Many, including, me, who read the judgment of Poole J in SW v Nottingham City Council & Anor EWCOP 53 (T3) were very interested to see whether there would be a published sequel. That judgment concerned a (rather…
Switzerland and the Terminally Ill Adults (End of Life) Bill – how many would still travel?
One point quite often lost in the debate about the Terminally Ill Adults (End of Life) Bill is as to the numbers of those who might still need the feel to travel to Switzerland were it to pass. In this…
Family Help, Early Help and the myth of ‘non-statutory support’
The Department for Education has published an updated version of Working Together to Safeguard Children (‘Working Together’), the statutory guidance on multi-agency working to support and protect children in England. It is a very…
Assisted dying and Article 2 ECHR – a self-imposed dilemma (and an update on delegated powers)
Assisted dying and the duty to secure life under Article 2 ECHR With grateful thanks to the Socio-Legal Studies Association for the invitation, I have contributed a blog to their series on the Terminally…
Personal welfare deputies – Lawson and Mottram strikes back?
Personal welfare deputyship cases are like buses – you wait ages, and then three come along all at once. After a period when, at least on the surface, we thought that the parameters of the appointment of personal welfare deputyship had…
Personal welfare deputies, the Court of Protection and Article 8 ECHR
Re XY EWCOP 55 (T2)[1] is an important decision about the powers of welfare deputies. The specific facts of the case are somewhat complicated, and not of direct relevance for present purposes. As HHJ Hilder emphasised at…
Adult safeguarding, Dame Louise Casey and gaps in the law
Dame Louise Casey, leading an independent commission into adult social care, has recently (3 March) written to the Secretary of State for Health and Social Care, asking for immediate action on safeguarding, dementia and motor neurone…
Restraint, learning disability and Seni’s Law – in conversation with Beverley Samways
In this 'in conversation' with Dr Beverley Samways, we talk about the scoping review she has led on to review NHS restraint policies in relation to people with learning disabilities, in the context of Seni's Law…
39 Essex Chambers March 2026 Mental Capacity Report and walkthrough
The March 2026 report is now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Senior Judge Hilder lays down her baton; attorneys and failures to consult, and a research corner on…
Is there space for clinical decision-making in relation to incapacitated adults? The CA pronounces
The Court of Appeal in Townsend v Epsom & Helier University Hospitals NHS Trust EWCA Civ 195 has handed down a decision with very significant implications for all medical decision-making in relation…
Assisted dying – immediate and (potential) longer-term lessons from Jersey
The Assisted Dying (Jersey) Law has been adopted by the States of Jersey. Because of the complex relationship between Jersey and the United Kingdom, it awaits “the sanction of His Most Excellent Majesty in Council” in…
Withdrawing clinically inappropriate life-sustaining treatment – the latest Strasbourg word
In light of the cases that are coming before the Court of Protection about the dividing line between treatments which are clinically inappropriate (and hence are not on the table), and treatments which are…
Assisted dying – the Isle of Man, the Ministry of Justice and fundamental human rights considerations
In the context of the debates in Westminster around the Terminally Ill Adults (End of Life) Bill, a letter published on 9 February giving an update to the members of the Tynwald (the Manx…
When is a deprivation of liberty not a deprivation of liberty? The Mental Health Act 2025 and conditional discharge
In 2018, in MM, the Supreme Court upheld the ruling of the Court of Appeal that neither the Secretary of the State nor the Mental Health Tribunal had the power to impose conditions…
Translating insight – in conversation with Professor Tony David
In this 'in conversation with,' I talk to Professor Tony David about his new paper, Insight, the law and psychiatry: Going round in circles or playing nice?. We talk about what 'insight' means clinically, and how law and medicine can…
Parental responsibility and confinement – the need for appellate authority continues (and a Gillick conundrum)
Whilst the Supreme Court considers the Attorney General for Northern Ireland’s reference, I am being cautious about commenting about cases concerning deprivation of liberty, given my role…
Personal injury payments, deputies and charging for care costs
R(CGT) v West Sussex County Council EWHC 293 (Admin) (HHJ Auerbach, sitting as a s.9 Judge)# Summary CGT (acting through his father, SGT) as litigation friend, brought a judicial review of a decision taken by West Sussex County Council…
“Third sector” deputyship – a further iteration of the requirements for appointment
In Re AB (Enable & Thrive Ltd) EWCOP 11 (T3), Senior Judge Hilder, not without a certain degree of reluctance, confirmed that a trust corporation which has (corporately) no independent regulatory oversight can, in…
Attorneys, failures to consult and consequences
Cwm Taf Morgannwg University Health Board v RW & Anor EWCOP 10 (T3) provides a snapshot of the realities of navigating health and welfare decision-making of a kind that rarely makes it to court. In short compass, it concerns a failure by a hospital…
Justice and the further expert
Re DA (Whether to replace a Single Joint Expert) EWCOP 7 (T2) is a decision which, as its name helpfully makes clear, is about a procedural point that sometimes arises, namely where one party to a joint instruction of an expert (here a psychiatrist) is sufficiently…
A Welsh white leopard? Litigation capacity in the absence of subject-matter capacity revisited
Whether you can have capacity to conduct proceedings about a decision you lack capacity to make is a question that infrequently, but consistently, troubles the Court of Protection. Mostyn J once…
National Mental Capacity Forum Annual Report 2023-2025
Margaret Flynn, the Chair of the National Mental Capacity Forum, has published her annual report (in fact, a double issue) for 2023-2025, drawing on both her own tireless work and that of members of the Forum. Amongst other highlights,…
Overwhelming desires and capacity – in conversation with Dr Joe Gough
In this 'in conversation' with Dr Joe Gough, we discuss some of the fruits of his British Academy Postdoctoral Fellowship at the University of Oxford looking at legal and medical assessments of decision-making capacity, how they…