This section contains links to case law summaries for adult social care.
Case Law
For summaries of key mental capacity and Court of Protection decisions, see: Mental Capacity Law Cases (39 Essex Chambers) and England and Wales Court of Protection Decisions (BAILII)
June 2026:
In this case, the Supreme Court determined that:
- The ‘acid test’ introduced following the ruling in P v Cheshire West and Chester Council [2014] UKSC (‘Cheshire West’) which has been used to identify a deprivation of liberty is wrong and departs from European Court of Human Rights case law;
- Instead, a multi-factor assessment should be used, looking at the specific situation of the individual concerned, including the type, duration, effects and manner of implementation of the measures in question;
- Furthermore, a person without mental capacity to make decisions about their residence and care arrangements can give subjective consent to what would otherwise be a deprivation of liberty, which would take their circumstances out of Article 5 of the European Convention on Human Rights (ECHR) and not, therefore, amount to a deprivation of liberty.
December 2024: Mental Capacity Assessments for Deaf People
Oldham Metropolitan Borough Council v KZ & Ors [2024] EWCOP 72 (T3)
This Court of Protection ruling concerns a 20 year old man who had previously been assessed as lacking mental capacity for a wide range of decisions. These mental capacity assessments had been completed by a number of different professionals including a consultant psychiatrist. However, following the appointment of a different consultant who had specialist skills and knowledge of working with deaf people and the use of robust practical steps, it was assessed that KZ did have the mental capacity to make all decisions and the judge agreed.
The judge stated:
“As regards wider issues concerning the assessment of mental capacity of deaf individuals,….. the use of a non-specialist expert is not an appropriate substitute for the specialist assessment and risks incorrect conclusions regarding capacity being reached. Where an assessment is required the following considerations should guide any assessment of a deaf individual fluent in BSL:
(1) Any mental capacity assessment of a deaf individual fluent in BSL should ideally be undertaken by an assessor who is suitably qualified to communicate at the relevant level of BSL. If that is not done, there should be a clear explanation why and what measures, if any, are proposed to be in place to manage that gap.
(2) The assessor should ideally have a background in understanding deafness and engaging with the deaf community. If they don’t, there should be a clear explanation why they are undertaking the assessment without such knowledge.”
March 2024: Safeguarding Adults and the Inherent Jurisdiction
Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam)
This Court of Protection judgment shows how the inherent jurisdiction can be used on a long-term basis to safeguard adults at risk of abuse or neglect. The case considered the most appropriate way of protecting an elderly woman (FH) from her husband (MH) of over 60 years. FH had complex health needs (including Alzheimer’s disease) and lived in a care home. However, she was assessed as having mental capacity to make decisions, meaning that the Mental Capacity Act 2005 could not be used and instead the Inherent Jurisdiction was applied.
The judge stated: ‘I have no doubt at all about the love which FH has for MH, and MH for his wife, but MH’s aggressive conduct as observed by professionals and care staff, his ungoverned temper at times, his interference with the proper provision of care for FH in the care home, render the making of injunctive orders necessary in FM’s best interests.’
Using the Inherent Jurisdiction, the judge made an order which prevented them from living together and ensuring that any contact between was supervised.
August 2023: Ordinary Residence
R (Worcestershire County Council) v Secretary of State for Health and Social Care [2023] UKSC 31
The Supreme Court overturned the Court of Appeal findings that first and originating local authority Worcestershire County Council had a duty to provide aftercare services rather than the second or host local authority Swindon Borough Council for an adult who had been re-detained in Swindon. The Supreme Court determined that after the person’s second discharge, Swindon had a duty to provide aftercare services, not Worcestershire. The case turned on whether the person, ‘JG’, had been “ordinarily resident…immediately before being detained” for the purposes of s 117(3)(a) of the MHA.
Worcestershire successfully argued that Swindon owed a duty to provide aftercare services, at the time of the second discharge, because the person had been ordinarily resident in Swindon immediately before the second detention. It was concluded where there had been more than one period of detention, the words ‘immediately before being detained’ must refer to the most recent period of detention. The Supreme Court found that although the person lacked mental capacity to decide where to live, the decision to live in Swindon was still made voluntarily “because it was the result of a choice made by those with the power to make decisions on their behalf.” The person’s residence in Swindon was also adopted for settled purposes, therefore, they were ordinarily resident in Swindon before their second detention on its plain meaning.
July 2022: Care Act Interpretation
A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014. The Court of Appeal rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men.
November 2021: Mental Capacity and Sexual Consent
JB appealed the Court of Appeal decision that he lacked capacity to engage in sexual relations, but his appeal was dismissed. The Supreme Court dismissed the appeal and found that ‘Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA, JB should be able to understand that information and under section 3(1)(c) MCA he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA on the available information, JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind’. The matter was remitted to a different Judge in the Court of Protection to determine the issue of capacity to engage in sexual relations as new information was available. For more details, see A Local Authority v JB.
May 2021: Disabled people’s access to sex worker services
Care workers who help disabled people access sexual services are not breaking the law, the Court of Protection has ruled. Mr Justice Hayden said that a care plan to facilitate a man’s contact with a sex worker would not be contrary to section 39 of the Sexual Offences Act 2003.
January 2021: AMHP Assessments during the Pandemic
The High Court has ruled, Devon Partnership NHS Trust and Secretary of State for Health and Social Care NHS Commissioning Board, that it is unlawful for approved mental health professionals to use video assessments for applications to detain people under the Mental Health Act 1983. This overturns NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic.
January 2021: COVID-19 Vaccine in Best Interests
The Vice-President of the Court of Protection ruled, E and London Borough of Hammersmith and Fulham, that it is in the best interests of an 80-year-old care home resident with dementia and schizophrenia to receive the Covid-19 vaccination, despite her son’s objections
June 2020: Breach of Human Rights
The Court of Appeal overturned a previous court decision which breached the human rights of a disabled man, with mental capacity who was forcibly removed from his home and taken to hospital. The judgement, Mazhar v Birmingham Community Healthcare NHS Trust, includes lessons for social workers and legal advisors using inherent jurisdiction.
April 2020: Undertaking Assessments Remotely
P’s daughter applied to the court to achieve his discharge from a care home where he was residing and a declaration that it was in his best interest to return home with a package of care: BP v Surrey County Council & Anor [2020] EWCOP17
The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 ( right to liberty) and Article 8 (right to family).
The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Facetime.
March 2019: The Islamic Faith and the Mental Capacity Act
An article in the BJPsych Bulletin reviews a Court of Protection case (2017) which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005.
July 2018: End of Life Care for Persons in a Vegetative State
The Supreme Court ruled (An NHS Trust and others v Y) that where a person is in a vegetative state, their family will no longer have to consult a judge when deciding to stop their end of life care if the medical team are also in agreement. Even if the person has not made an advance decision to refuse treatment, where the family and medical team agree it is in the person’s best interests, artificial feeding and hydration can be stopped.
September 2017: Court of Appeal finds for Council in first appeal on Care Act 2014 provisions
The Court of Appeal has dismissed a disabled man’s appeal over a decision by a county council to reduce his personal budget from £1,651 to £950 per week and revise his care and support plan. See the ruling: Court of Appeal finds for council in first appeal on Care Act 2014 Provisions and Lessons for Social Workers from Luke Davey’s Care Act Appeal (Community Care)
