Court of Protection (Mental Capacity Act) cases
The Court of Protection is the division of the High Court that deals exclusively with Mental Capacity Act cases. The rulings of the Court give guidance to professionals and organisations in how to interpret the Act.
We list here some of the most significant rulings of the Court. The list is regularly updated as new cases come in, the most recent cases being nearest the top of the list. If you have any suggestions of cases you would like us to include please let us know.
Many of the links here come from the excellent resources on the website of 39 Essex Barristers' Chambers.
We naturally update our training to take account of Court rulings.
Heard in April 2020, BP is an 83 year old man with Alzheimers, living in a care home. His family wanted to remove him back to their own home, due to fears over Covid-19. The court gave a ruling that the capacity assessment could be carried out by Skype, given the current lockdown.
The Trust applied for a declaration that it was in AB's best interests to have an intrauterine contraceptive device (IUD) fitted when she had a caesarean section.
Yet another case relating to consent to sex. The issue here was that the man, JB, understood that he would have a choice, and could refuse to consent to sex, but he did not appear to understand that his sexual partner could also refuse. The Court was asked to rule on whether this meant that he had capacity, or lacked capacity, to consent to sex.
AB is a 51-year-old man with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse. He lived in supported housing and met prostitutes for sexual relations, at times travelling to the Netherlands to meet sex workers there. This was an application by the LA for the court to determine P's capacity and best interests, specifically with regard to contact with sex workers.
Yet another attempt to give some clarity on how to assess capacity to consent to sex (amongst other issues). This case went to the Court of Appeal, which overruled the Court of Protection and decided that B ( a 31 year old woman) did indeed have the capacity to consent to sex.
A case which generated a lot of media interest, and no little outrage, when the Judge was initially reported as having commented: "I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife". The case itself is a lot more complicated than that simple soundbite would lead you to believe.
An unusual case concerning a pregnant 27 year old woman with diagnoses of paranoid schizophrenia and emotionally unstable personality disorder. Although she currently had capacity to make decisions about the birth, past history would suggest that at the time of actually giving birth she may well lack the capacity to make decisions about medical help. So her medical team was asking the Court to give them guidance now as to what they could reasonably do if that event were to happen.
RW was a 78 year old man with advanced vascular dementia and who was clearly very close to the end of his life. The issue was what treatment to give and/or to withhold. The judgement is notable for the way in which the Judge seeks to bring RW's character to life, mainly through the evidence of his sons who have been struggling to care for him.
- Kings College Hospital NHS Foundation Trust and FG, and South London & Maudsley NHS Foundation Trust  EWCOP 7
FG, a man who had paranoid schizophrenia, had dislocated and fractured his shoulder, requiring surgery. FG was very fearful of anaesthetic, and the prospect of surgery, leading him to refuse to have the surgery.
PBM, a man in his mid-twenties, had a brain injury as a result of a deliberate injection of insulin by his father when he was 12 months old. Various issues were considered in this case, including PBM's capacity to marry and to enter into a pre-nuptial agreement.
B is a woman in her 30s who has a learning disability. The Court had to consider various capacity issues, including regarding her care and treatment, consenting to sexual relations and using the internet and social media. In the past B had used social media to send intimate photographs of herself, and to give out her home address to strangers.
A, a 21 year old man with a learning disability, was known to search compulsively for pornography on the internet when unsupervised. Much of the content was paedophiliac and extreme, even illegal, sexual activity. There was a concern that he did not understand the warnings regarding content and safety.
This case revolved around KR, a lady in her 80s who had dementia, and who had been the subject on Court of Protection decisions in 2016 and 2017. The Court, as is usual, had issued instructions, known as "transparency orders" prohibiting anyone from publishing personal information about KR's identity. But her long-term partner, Mr Stalter, had alledgedly breached these transparency orders on at least 25 occasion over a period of 2 years. So the Court was asked to send Mr Stalter to prison for contempt of court.
SR, an 83-year-old woman who had dementia, was subject to a standard DoLS authorisation in a care home. She had been married to JR for almost 60 years. The local authority wished to restrict contact between the couple on the basis that JR could not look after his wife safely. There were also concerns about JR's views in favour of euthanasia and whether those views would place SR in danger.
This case received some media interest as it concerned a young woman with autism and a learning disability who was deemed to have capacity to consent to sex, but not to have capacity to make decisions on her contact with men. The Judge said that these were two separate decisions, but to be honest we struggle to see how you could have one without the other.
The Supreme Court gave a ruling on whether decisions relating to the withdrawal of artificial nutrition & hydration from a patient in a vegetative state could be made by the doctors and families alone, WITHOUT having to go to court.
Sergei Skripal and his daughter Yulia were admitted to hospital in Salisbury in March 2018 having been allegedly the victims of a nerve agent attack carried out by Russia. The case received widespread publicity and led to a serious diplomatic row between the UK and Russia. The case that came to the Court of Protection concerned whether it was lawful for blood samples from the Skripals to be taken from them, and for those samples to be shared with other security services around the world in order to enhance our understanding of what had happened.
D was a soldier who had suffered traumatic head injuries as the result of an assault in a bar by another member of his regiment. The case was about whether it was in his best interests to to be taken to Serbia to receive stem cell treatment.
An 81 year old woman had made an Advance Decision to refuse treatment, but this was misplaced by the hospital which led to her receiving artificial nutrition and hydration for 22 months.
CH and WH were a married couple who both had learning disabilities. When they sought fertility treatment a professional questioned whether CH (the husband) had capacity to consent to sex, and he was required to undergo a (much-delayed) programme of sex education.
IH was a 39 year old man with a profound learning disability, autism and challenging behaviour. This case looked at whether it was in his best interests to observe certain religious practices (fasting during Ramadan, and having his pubic and under-arm hair shaved), since he lacked the capacity to make those decisions for himself.
Case that went to the Supreme Court. N's parents wanted the CCG to provide a certain level of care for their learning disabled son, but the CCG argued (in part) that they had limited resources and could not fund this.
An interesting case where a 32 year old man with Prader-Willi Syndrome was reluctant to engage with professionals who were trying to assess his capacity to make decisions in relation to residence and care. An expert in PWS concluded he lacked capacity, whereas a social worker (who had less expertise in PWS) managed to establish more of a rapport with him, and concluded that he had capacity.
A complicated case where 3 teenage boys had been taken into care due to concerns that their mother (M) had brought them up in what amounted to a "cult" environment, with very limited contact with the outside world. Of particular interest was the assessment that J, who was almost 18, lacked the capacity to decide where to live - but the Judge criticised that assessment.
This case concerned a 20 year old woman with autism who engaged in what some people would see as "risky" or "unwise" behaviour. The question was whether the "riskiness" or "unwiseness" of this behaviour amounted to a lack of capacity on her part.
A woman wished to terminate her pregnancy. The father of the unborn child had assaulted her badly, leaving her with head and other injuries. Therefore there were questions about whether she had the capacity to decide to have the termination, and if not, whether a termination was in her best interests.
An application by the wife of a man in a minimally conscious state (following a road traffic accident) to stop his clinically assisted nutrition and hydration (CANH).
This case concerned the will of David Poole who had suffered severe head injuries in a motorcycle accident in 1985 and who then died in 2013. The will had been drawn up by his carer/landlord Mark Everall, and was contested by David Poole's brothers on the basis that David Poole lacked the capacity to make that will.
KA was a 29 year old man of Bangladeshi heritage, whose family wanted to arrange a marriage for him. The judge gave some useful guidance on how professionals should assess someone's capacity to marry and capacity to consent to sexual relations.
Court of Protection revoked the LPA of a woman with dementia whose son had taken large amounts of her money as "expenses".
A 50 year-old woman refused life-saving kidney dialysis treatment. She had lived the "high-life", but as she became older she felt her life had lost its "sparkle".
A case which, amongst other things, gave guidance on how we might assess a person's capacity to consent to sexual activity.
JB, who suffered from paranoid schizophrenia and various physical health problems, had a gangrenous foot, which doctors recommended should be amputated. There was doubt about JB's capacity to make this decision, hence the court case. The court was critical of various comments made by professionals in their capacity assessments.
IA was a 59-year-old man with numerous serious health issues arising from his diabetes and latterly from a vicious criminal assault. The issues were his capacity to make decisions about his medical treatment, ongoing residence and care and management of property and affairs. The strenuous efforts made by professionals to help IA to make these decisions for himself (despite IA's frequent refusal to co-operate) were held up as an example of best practice under Principle 2 of the Mental Capacity Act.
LM, a 42-year-old female, had a long history of drug and alcohol abuse, and more recently brain damage after a cardiac arrest. She was in a relationship with AB. LM had been assessed by the Court of Protection as lacking the capacity to consent to sex, which meant that AB would be breaking the law if he were to have sex with her. AB challenged that assesment, so the case came to the Court of Appeal.
TZ was a 24 year old man with mild learning disabilities, atypical autism and hyperactivity disorder. He was deemed to have capacity to make some decisions, and to lack the capacity to make others, and the Judge here gave guidance on the importance of being careful about what decision is actually being assessed.
LP, a female, had left her husband and adult children to set up a new life with a different partner. She severed all contact with her "old" family. They eventually tracked her down to a care home where she was living following a stroke. She lacked the capacity to decide whether to have any contact with the "old" family, so the case was about whether it was in her best interests to do so.
PC, a 48 year old woman with a mild learning disability, had established a relationship with NC, a man, in 2001. They had lived together for a while before NC had been sent to prison for 13 years for serious sexual offences, not involving PC. PC and NC had married in 2006, whilst he was serving his prison sentence. With NC coming to the end of his sentence, professionals were worried about the risk he might pose to PC if they were to co-habit. The Court of Protection ruled that PC lacked the capacity to make that decision. PC and NC disputed that capacity assessment, so the case went to the Court of Appeal.
RG, a man with learning disabilities, had undergone an arranged marriage in India with SK. The couple now lived in England and there were concerns about whether they should remain married, and whether they should continue to have sexual relations.
Mr James had suffered a stroke, cardiac arrest and multiple organ failure and was being kept alive by clinically assisted nutrition & hydration (CANH). The question was therefore whether it was in his best interests to keep him alive, or to withdraw the CANH. The case went to the Supreme Court.
- "Woman with limited mental capacity can have her baby" (headline from the Independent newspaper, 2013)
The case concerned a young woman with learning disabilities who was 18 weeks pregnant. Professionals were concerned about her ability to decide whether or not to have the baby, and how to care for the baby once it was born.
A 37 year old woman with a history of bi-polar disorder, who was 23 weeks pregnant, wanted a termination.
A 35 year old woman with a history of psychotic mental illness was pregnant. Doctors believed she should have the baby by Caesarean Section due to the danger to mother and baby, but she refused. The Court allowed her full name to be published.
The parents of 21 year old woman with learning disabilities were concerned about the possibility of her becoming pregnant, so they sought permission to have her sterilised.
This was a complicated case in which a woman with learning disabilities (PM) had married a man who did not have learning disabilities. There were concerns that this was a "marriage of convenience" to overcome his immigration problems. The court had to rule on the validity of the marriage, and on the woman's capacity to consent to sex with her husband, and where she should live. There was also the welfare of an 18 month old baby to consider.
A 36 year old man with learning disabilities was in a relationship with a woman, which had produced a child. The pregnancy, and subsequent birth, had been very traumatic for both of them, and it was assessed that they lacked the capacity to decide to go through with another pregnancy. The question, therefore, was how to prevent a future pregnancy happening - and sterilisation of either or both of them was being considered.
L, a 30 year old man with learning disabilities, was considered to be very much on the borderline between having, or lacking, the capacity to decide on residence, care and contact. The Judge gave some very useful guidance on what is, and is not, relevant in assessing capacity on these issues.
A complicated case where judgements were needed on X's capacity to marry, make a will, revoke or grant an enduring or lasting power of attorney, manage his affairs and litigate.
DL, a man of around 50, was accused of bullying and controlling behaviour towards his parents who were aged 85 and 90. The local authority stepped in to protect them under Safeguarding arrangements. DL argued that the local authority had no right to do this as his parents had capacity. The Court of Protection, and then the Court of Appeal, ruled that it had the inherent jurisdiction to protect vulnerable people, whether or not they had capacity.
E, a 32 year old woman, had a severe eating disorder, borderline personality disorder and substance dependencies. She was close to death, having not eaten any solid food for over a year. She had previously made an Advance Decision to refuse life sustaining treatment. The Court had to consider whether she had had capacity when she made that AD, whether she had capacity now, and if not, would it be in her best interests to feed her against her will?
Members of a band which was referred to in court as "MY" had a chart hit in the 1980s called "Pass the Dutchie". Many years later they sued their then legal advisors for what they said was poor advice on marketing rights. One of their complaints was that one member of the band, FW, had been suffering from paranoid schizophrenia at the time, and therefore did not understand the contract that he was signing.
A 29-year-old woman with learning disabilities and autism, living in supported accommodation, was engaging in sexual behaviour that was considered to be harmful to herself. In particular, she felt she had a duty to submit to sex, and did not appreciate that she could say "no". The Court had to consider whether she had capacity to consent to sexual activity, and also how to manage the situation.
An application by HN to have her sister, FL, moved from a care home in Hampshire to one in London so that HN could see her more often.
- "Brain-damaged woman denied right to die in landmark ruling" (headline in the Independent newspaper, 2011)
M was in a "minimally conscious state" after a viral encephalitis. Prior to her illness she had made it clear verbally to family and friends that she would not ever want to be reliant on life support. But she had never put those wishes in writing, so the Court had to decide whether to continue the life support, or to withdraw it.
AB was a 41 year old man with a mild learning disability, and the issue was whether he had the capacity to consent to sex. The Court gave some guidance on how to assess capacity in such a case, but please note that this guidance was revised by the later case of London Borough of Tower Hamlets and TB in 2014 (see above).
PS was a 55-year-old woman with a learning disability who had been diagnosed with cancer. It was accepted that she lacked the capacity to decide how to deal with this. In particular, she had a fear of needles and of hospitals, so it was very difficult to persuade her to go to hospital for treatment.
The local authority (LBL) sought a declaration that a young adult female (RYJ) lacked the capacity to make various decisions about her life. The Judge gave some guidance on what is, and is not, relevant in assessing capacity, and also gave guidance on how the Court's inherent jurisdiction might apply.
Until this ruling virtually all Court of Protection cases were held in secret and not reported. This ruling allowed the media to attend and report on CoP cases, without which we would not have been able to compile the database you are now looking at.
P, a 24 year old man with a mild learning disability and severe uncontrollable epilepsy had a difficult relationship with his adoptive mother, AH. It was a case of they couldn't live together, but neither could they live apart. The case was about whether P had the capacity to decide where and with whom to live, and if he lacked capacity, what should happen.
An early Mental Capacity Act case which centred on whether MM had the mental capacity to decide to spend time with a man who often encouraged her to sleep rough and stop taking her medication. The Judge (Mr Justice Munby) posed the now-famous question: "What good is it making someone safer if it merely makes them miserable?"
Just before the Mental Capacity Act became law, but an interesting case where a 25 year old man with autsim and learning disabilties was about to be taken to Pakistan for an arranged marriage. The local authority intervened, and took the case to court on the basis that MAB lacked the capacity to consent to sex, and lacked the capacity to consent to marry.
A landmark ruling that paved the way for the Mental Capacity Act more than a decade later. Harry C was a patient in Broadmoor Hospital who had a gangrenous infection in his leg. However he refused to allow the doctors to amputate it, which they felt was necessary.