Judgment given on 2 June 2026: following oral hearing on 20, 21 and 22 October 2025, before Lord Reed, President, Lord Hodge, Deputy President, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose and Lady Simler.

Question asked: whether the Minister of Health for Northern Ireland can lawfully issue a revised Code of Practice under the Mental Capacity Act (Northern Ireland) 2016 to allow some people who lack legal capacity under domestic law to, nonetheless, be treated as giving valid consent to their care arrangements through the expression of their wishes and feelings. If so, they would not be treated as being deprived of their liberty for Article 5 ECHR purposes, and the statutory deprivation of liberty safeguards would not apply.

Answer of the Supreme Court: the Minister would be acting in accordance with Article 5 ECHR in issuing the revised code. In reaching that conclusion, the Supreme Court concluded that Cheshire West and Chester Council v P [2014] UKSC 19 (“Cheshire West”) was wrongly decided, and should be overruled (para 207), applying the 1966 Practice Statement. This was the unanimous decision of the Supreme Court.

Why? – the 4 key reasons

1. A multifactorial test, and not an “acid test” is required;

2. There is an overlap between objective fact and the subjective absence of valid consent;

3. The type of setting is important;

4. “Liberty” means physical liberty.

Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640

This Court of Appeal decision is essential reading for Court of Protection (“COP”) practitioners. It addresses a practical but sensitive question: when an observer attends a public COP hearing, can they receive a copy of the parties’ position statements?

The answer is: not automatically.

The underlying dispute in these proceedings concerned an advance decision to refuse treatment. Position statements filed during the case contained highly sensitive material about P’s family and quotations from source evidence.

Professor Celia Kitzinger, observing as part of the Open Justice Court of Protection Project, sought disclosure of the parties’ position statements from several hearings. Those who appear in these types of cases will know Professor Kitzinger and the valuable role she plays in monitoring and promoting open justice. The Court of Appeal acknowledged her legitimate role as a court observer and transparency advocate. Of course, there was no criticism of her request. The question was whether it should be granted.

Townsend v. Epsom & St Hellier University Hospitals NHS Trust [2026] EWCA Civ 195

1. The Court of Appeal judgment in Townsend, handed down today, may surprise some practitioners dealing with medical treatment applications in the Court of Protection – but it certainly needs close attention from those advising hospital Trusts on such cases.

 

2. In summary, the Court of Appeal’s judgment will impact on professionals and families in two ways:
   1. The appeal arose from a refusal of permission to bring a welfare case in the Court of Protection, applying s.50 MCA.  The Court of Appeal said these cases would almost always get permission.  The implication of that is that Hospital Trusts will need to bring more of the cases to Court.
   2. The Court of Appeal judgment sees little if any room for hospitals to remove options on clinical grounds, seeing issues as primarily best interests.  This may change both the options put to patients’ families and the range of options considered in applications to the Court.

 

FACTUAL CONTEXT

3. This tragic case concerns Mr Robert Barnor, a 68 year old man who was admitted to hospital on 7 April 2025 following a collapse at home. He suffered a series of strokes which left him with significant and irreversible brain damage.  Mr Barnor also suffered from kidney disease; following his collapse, his kidney function deteriorated further and he required dialysis.  A trial period off dialysis in August 2025 was unsuccessful. Subsequently, the tunnelled dialysis catheter through which he received dialysis became blocked.  While a temporary catheter was inserted, a replacement catheter would have been required for further dialysis to continue.

The Mental Health Act 2025, which amends and modernises the Mental Health Act 1983, received Royal Assent on 18 December 2025, albeit the majority of the provisions are not yet in force.

The MHA 2025 was a long-awaited act. Detentions under the MHA 1983 rose by over a third between 2006 and 2016, possibly contributed to, inter alia, by 2007 reforms to the MHA which widened the definition of mental disorders and treatment and reduced availability of alterative community care. It was widely recognised that patients under the Act often felt they had a poor experience of care. It is no coincidence that the December 2018 Final Report of Sir Simon Wessley’s Independent Review of the Mental Health Act 1983 was entitled “Modernising the Mental Health Act”.

There has also been no shortage of hype generated around the changes that the MHA 2025 will introduce, with the act variously described as “groundbreaking” (Sarah Murphy, Mental Health and Wellbeing Minister), “a turning point” (Lord Timpson, Minister for Prisons, Probation and Reducing Reoffending) “a major step” (Dr Adrian James, Medical Director for Mental Health and Neurodiversity at NHS England), and a “landmark” introducing ““urgent reforms… bringing mental health care into the 21^st century and empowering patients to take charge of their treatment” (Department of Health Announcement 18.12.25).

There is certainly a focus on autism and learning disabilities within the Act, which were two of the key areas of experience identified in the independent review. Although also billed as “tackling unacceptable [racial] disparities” (), again identified in the independent review, it is unclear which parts of the Act are said to be directed at this goal.

Various aspects of the previous regime amended by the MHA 2025, including prisons and police stations as a place of safety and the grounds for detention, were identified in the December 2018 Final Report of Sir Simon Wessley’s Independent Review of the Mental Health Act 1983 as having a disproportionate impact on black patients. The announcement from the Department of Health seems to indicate that the tackling of racial disparities will be achieved primarily through the future publication of “clearer guidance”. What form that will take, and whether the changes will have the intended effect, is as yet unclear.

Practitioners may welcome the more explicit approach to medical treatment decision-making and the extent to which this echoes the best-interests approach adopted under the MCA 2005. The focus on “least restriction” also echoes the principles for approving deprivation of liberty within the MCA 2005 and Court of Protection.

However, practitioners may also share the concerns of the Joint Committee on Human Rights, as published in their Third Special Report of Session 2024–25 HC 1217, on the lack of guidance as to the interface between the MCA 2005 and the MHA 1983. The government’s response to this concern was that further guidance will be published in the revised Code of Practice.

With many of the changes not yet in force, and appearing to depend on the content of regulations and guidance yet to be produced, the transformative extent of the Act remains to be seen.

In Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB & and ors [2025] EWHC 1292 (Fam), the Court of Protection had to grapple with some remarkable failures of disclosure in a case involving the withdrawal of life-sustaining treatment from a critically ill child.

The Trust had applied for declarations that it would be lawful to withdraw life support for a young child with a rare and devastating condition. Despite clear directions months earlier, the Trust failed to provide a full, coherent set of medical records. Some documents were missing. Others were poorly copied and unreadable. Crucial details, like notes from therapeutic staff and minutes from key meetings, simply weren’t there or were said not to exist.