Welcome to ‘Did You Know?’,  Hempsons’ publication designed to keep you informed about the latest legal developments, legislation, and noteworthy case law across our sectors.

In this edition, we shine a spotlight on the complexities of mental capacity and the Court of Protection.

From the nuances of fluctuating capacity to the scope of s.21A applications and s.49 reports under the Mental Capacity Act 2005, our Advisory team explores key developments and practical considerations. We also examine the shift in approach to anonymity in treatment cases and the scenario where even agreed home care arrangements may require an order from the Court of Protection.

We hope you find the articles in this edition both interesting and useful. If you need any legal assistance, have questions, or wish to discuss any of the issues covered, we would be delighted to hear from you.

It is much said that capacity is time specific. A natural consequence of this is that an individual can be said to have “fluctuating” capacity, meaning that they have capacity in relation to an issue at one time, but not at another. This may be common in conditions which have a cyclical nature such a bipolar disorder or dementia.

Fluctuating capacity does not sit neatly within the framework of the Mental Capacity Act 2005. Taking the Deprivation of Liberty Safeguards (DOLS) as an example: if a person with a diagnosis of dementia is mainly lucid in the morning (and has capacity to make decisions about their residence and care at that time) but becomes less so through the day (such that they would be assessed as lacking that capacity), it would be plainly unworkable for a DOLS authorisation to be terminated each morning and applied for afresh each afternoon.

There are a number of ways that the courts have dealt with fluctuating capacity:

• The global approach: treating an individual as not having capacity in relation to a certain issue, even if they may have that capacity at certain periods/times of the day. Whilst this approach offers consistency, it grates against the principles of the MCA in terms of maximising capacity and being least restrictive.
• On a decision-by-decision basis: relying on capacity assessments for each issue and treating in line with consent (when capacitous) or best interests (when lacking capacity). The downside of this approach is that it puts a high burden on the care team and will increase the number and frequency of capacity assessments.

In short, there is no default answer. In finding a way through any individual case, we suggest key considerations will be:

• Careful assessment of capacity and identifying when an individual may be said to have fluctuating capacity
• Establishing any cycle to the fluctuation to enable capacitous decision making where possible
• Advance care planning
• Close multi-disciplinary collaboration as needed
• Early consideration of whether legal advice or a court application is required.

When assessing capacity, a person’s insight into their impairment and their belief of the relevant information given to them may affect their ability to make decisions. However, two recent cases make it clear that these factors should not be used as a shortcut to reach the conclusion of a lack of capacity.

Insight

In the recent appeal case of CT v London Borough of Lambeth [2025], Theis J said:

“Insight is a clinical concept, whereas decision-making capacity is a legal concept… a person may be able to make a particular decision even if they are described as lacking insight into their general condition”

Insight is understood as a person’s understanding of their own condition or circumstances, and their awareness of the nature and implications of a problem. A finding of lack of insight is common in various conditions such as dementia. In CT, Theis J makes it clear that including in the list of relevant information “insight into the effect of his mental impairment” was not in accordance with the requirements of the MCA 2005. Rather, the relevant information includes the nature of the decisions, the reason why the decision is needed and the likely effects of deciding one way or another, or making no decision at all.

However, this does not mean that a lack of insight is irrelevant when assessing capacity, but rather that, if insight is considered to be relevant, the assessor must clearly record:

• What they mean by lack of insight in this context; and
• How they believe it does or does not affect the person’s ability to make the decision under the functional test as defined under s3 MCA 2005.

Belief

Belief refers to a person’s personal convictions or perceptions about their situation and the information that they are provided.

In the case of Re Thirumalesh (Dec’d) [2024], the individual was deemed to lack capacity as she did not believe the medical information being provided to her. However, on appeal, King LJ notes that while a lack of belief in medical information was relevant as to whether there was a lack of capacity, it was not determinative.

Therefore, as with insight, if a lack of belief is considered to be relevant in a capacity assessment, it must be set out clearly and in context how that interferes with the person’s ability to make the decision under the s.3 MCA 2005 functional test.

In medical treatment cases both in the Family Court and in the Court of Protection, it has long been fairly common for injunctions preventing the identification of the treating clinicians indefinitely to be made at the outset of proceedings.

Since the Supreme Court handed down its decision in the Abbasi and Haastrup cases in April 2025, it is clear that those indefinite injunctions will no longer be granted. Instead, injunctions are likely to be time limited and, in some cases, where individuals or groups of clinicians feel they need protection for a longer period, they may need to be joined to proceedings and/or make an application themselves. This is because the jurisdictions available to grant these injunctions change as we move through the proceedings.

The Court identified four relevant time periods:

• Start of proceedings:
  • It was determined that anonymity of clinicians is likely to be in the best interests of the child at the outset both to protect the child’s rights and to limit the risk of collateral damage to the Trust.
  • The Court accepts that generic evidence (such as the risk of harassment, invasion of privacy or an effect on a clinician’s ability to provide treatment to others occurring in previous comparable cases) is likely to be sufficient at this stage.
• During proceedings:
  • A continued balance of the Article 8 rights of the child (and the clinicians if they have been joined to proceedings) and the Article 10 rights of the parents, media and public will be necessary, though the Court acknowledged that the proportionality balance is likely to come down in favour of an injunction of some kind.
• A “cooling-off” period after conclusion of proceedings or the death of the person concerned:
  • Injunctions are likely to be continued for a period of weeks rather than months or years to allow those involved to assess whether a longer continuation of the injunction is felt necessary.
  • The Court expects that this cooling-off period will allow clinicians time to consider their own position and to obtain independent legal advice where required.
• After the cooling off period:
  • This will depend on the circumstances of the case and whether the person the proceedings are concerned with lives or dies, but it is likely that the only basis available to the Court to continue the injunction will be the clinicians’ own cause of action, meaning that they will need either to be joined as party to proceedings to make an application before conclusion or to issue proceedings themselves.

It is easy to focus on the practical issues arising from this judgment, but what is made clear is that there is a solid basis for an NHS Trust to seek an injunction preventing the identity of its clinicians from the outset of proceedings until the end of a period after conclusion, even without specific evidence as to risk.

A person (referred to as “P”) aged 18 or over, residing in a care home or hospital and being deprived of their liberty under a Deprivation of Liberty authorisation (whether standard or urgent), lacking capacity has a statutory right to have such deprivation arrangements reviewed, via section 21A Mental Capacity Act 2005 (“MCA”). These challenges are commonly known as “section 21A applications” made to the Court of Protection, with the Judge as the decision maker.

Where applications are brought under s.21A, P is entitled to legal aid (regardless of their means or the merit of the case), which can be an advantage to commencing proceedings under this pathway.

Powers

The court can determine, in relation to an authorisation:

1. Whether the qualifying requirements of a standard authorisation are met;
2. Whether the urgent authorisation should have been granted
3. The period for which the standard/urgent authorisation is to be in force
4. The purpose for which the standard/urgent authorisation is given; and/or
5. The conditions subject to which the standard authorisation is given.

The Court can make an order varying, or terminating the standard or urgent authorisation, or directing the supervisory body or managing authority of the relevant hospital to do so (s.21A (3) and (5)) MCA.

The powers of the Court can however extend beyond this, with declarations and decisions under s.15 and 16 MCA being utilised within s.21A applications. The Court has discretionary powers under s.15 to make declarations and wide powers under s.16 to make decisions on P’s behalf, for matters concerning their personal welfare e.g contact issues.

Who should bring the application?

The vexed question is often who effects this unqualified right for review, for P? An application could be brought on behalf of P by their representative, the supervisory body responsible for the authorisation, or a commissioning and or treating NHS body. It will come down to the circumstances of the case, as to who is best placed to commence the application however the Court will be keen to ensure there is no unnecessary delay in effecting P’s right to challenge because of a dispute between bodies on the ground.

The duty upon public bodies is wide, with the Courts terming it a positive duty upon public authorities (including ICBs) to “enable” the lawfulness of a detention to be “reviewed speedily by the court” (AJ (Deprivation of Liberty Safeguards) [2015])

In RD & Ors [2016], Baker, J was clear that P’s Relevant Person’s Representative is under an obligation to represent and support P in all matters relating to, or connected with Schedule A1. This obligation extends to:

1. Taking all steps to identify whether P wishes to exercise their right for review (whether to the Court of Protection or via Part 8, Schedule A1; and
2. If the RPR does wish to apply, the RPR is “under a duty to ensure that the application is brought”.

The position of AJ does however remain whereby, if there are concerns or conflict as to who should bring the application, P should not be negatively impacted by delay and there remains an expectation on the State to ensure P’s right to review is an effective one.

Wider considerations

• Act promptly in seeking legal advice if orders are received joining your organisation or commissioning body to proceedings;
• Seek legal advice as to whether joinder is appropriate. Applications seeking discharge should be made promptly with robust justification;
• Ensure clarity of funding arrangements;
• Responsible commissioner disputes must not negatively impact upon s.21A proceedings;
• Could additional commissioning reduce risk or improve current arrangements for the benefit of P?

Most professionals are familiar with the Deprivation of Liberty Safeguards; a statutory process which applies in care homes and hospitals where a person is deprived of their liberty as a result of their care and accommodation arrangements and lacks the capacity to consent.

By way of reminder, a person is deprived of their liberty if they are subject to continuous supervision and control and are not free to leave. People might be considered subject to continuous supervision and control and not free to leave where;

• They are often accompanied
• They are monitored or restrained to prevent harm to themselves/others
• They are prevented from leaving without support
• They are brought back to the accommodation if they try to leave
• Doors or certain areas are locked for safety reasons

When a person is deprived of their liberty in a care home or hospital, the Court is not usually involved except in specific circumstances (for example, if someone is objecting to or disputing the arrangements).

However, did you know there is a different process where a person is deprived of their liberty in the community? This is because the Deprivation of Liberty Safeguards do not apply outside of hospitals and care homes.

These community cases do require Court involvement to authorise them. ICBs and Local Authorities (and sometimes Trusts if they carry out commissioning functions) must make applications where they arrange or pay for packages of care.

This applies even in cases where the person is not objecting to their care and residence arrangements, and all those interested in their welfare are in agreement that the arrangements are in their best interests. It is known as the COPDOL11 or Re X procedure.

A quick reference guide to these applications is below;

• Applications are paper based and do not require a Court hearing
• The following supporting documents are required;
  • Assessment of the person’s capacity to make decisions

• • Evidence demonstrating that the person is suffering from a mental disorder which affects their capacity
  • Copies of care plans or relevant risk assessments
  • Evidence demonstrating those care plans or risk assessments are the least restrictive option to meet their needs
  • Evidence demonstrating everyone with an interest in the person’s welfare is in agreement with the arrangements
  • Evidence of the person’s wishes and feelings
  • Evidence from an advocate (Rule 1.2 Representative) for the person confirming their review of and agreement to the arrangements
  • Details of the order the Court is asked to make

• COPDOL11s can only be used where there is no dispute as to the person’s best interests.
• If there is a dispute, a different type of application might be required; do seek legal advice if you are unsure.

Under s.49 of the Mental Capacity Act 2005, the Court has the power to call for a report where it is considering questions relating to P. This could be from by a Local Authority, NHS body, by a Public Guardian or by a Court of Protection Visitor. The report should address the issues as directed by the Court.

Obtaining a s.49 report should always be considered before seeking permission to instruct an expert, but in any event it may be preferred by parties because:

• A s.49 report does not have any associated costs while independent expert reports can be costly.
• Usually, a s.49 report is produced by someone known to P and so they can draw on background experiences to produce a report quicker than an independent expert who may need to take several sessions to build a rapport with P.
• 49 reports are usually more focused on specific questions without complex analysis. This ensures that the report is concise and again can mean that the turnaround time is quicker.

However, a s.49 report will not be appropriate in all circumstances. A s.49 report might be appropriate when:

• P is known to the reporting statutory body. This allows the employee writing the report to draw on their knowledge and experience of P while drafting the report.
• Evidence before the court does not confirm the position of P’s capacity or if evidence is borderline.
• P objects to the application and wishes to be heard by the court but does not qualify for legal aid funding.

Before seeking a s.49 report, parties should make efforts to contact the relevant person within the local authority or NHS body to make them aware that an application is going to be made. The notification should include the purpose of the report and any issues that should be addressed within the report. This allows the statutory body time to consider and feedback in relation to what will be asked of them ahead of the order being made.

S.49 reports are useful, but there should be careful consideration as to whether they are appropriate to the circumstances of the case. Importantly, notice should be given to the nominated person to allow them to consider the request and any proposed timeframe before it is directed by the Court.

Our team is highly experienced in advising and representing both health and social care providers in CoP proceedings, particularly in welfare cases where disputes may arise around care arrangements, medical treatment, or in respect of deprivation of liberty (DoL) authorisations.

We support clients with:

• Advice and guidance on compliance with the Mental Capacity Act
• Applications to the Court of Protection for welfare decisions, including disputes over capacity, care, treatment, or residence
• Challenges to DoL authorisations
• Applications to the National DoL List
• Serious medical treatment applications
• Community DoL applications (COPDOL11s)
• MCA-related policy reviews

Our approach is collaborative and pragmatic, helping our clients to manage risk, and to meet their legal obligations.

Find out more and contact our experts on our website.