Alex Ruck Keene @capacitylaw

Brain stem death testing and the courts: procedural fairness, and the definitive diagnosis of death The issue of brain stem death testing (or, more formally, diagnosing death by neurological criteria) is one that has been before the courts no less than three times in the last month. The first case, Re DT, concerning an adult, focused on the question of where such testing should take place, as opposed to whether. The second two cases arose out of the awful situation facing a family whose 12 year old daughter, LS, suffered an irreversible hypoxic ischaemic brain injury in consequence of asphyxiation.

Brain stem death testing and the courts: procedural fairness, and the definitive diagnosis of death

The issue of brain stem death testing (or, more formally, diagnosing death by neurological criteria) is one that has been before the courts no less than three times in the last month. The first…

04.12.2025 10:54 — 👍 0 🔁 0 💬 0 📌 0

I gather that Mr Riddle‘s article followed mine. Best wishes Alex

02.12.2025 19:30 — 👍 0 🔁 0 💬 0 📌 0

Suicide prevention and the legalisation of assisted dying / assisted suicide – new position statement from the International Association of Suicide Prevention The International Association of Suicide Prevention published on 1 December a position statement on assisted suicide and euthanasia. It is available here; I reproduce below the accompanying statement on its website. The International Association for Suicide Prevention (IASP) has released a Position Statement on Assisted Suicide and Euthanasia, reflecting growing global developments in legislation, policy, and public debate related to medically assisted dying.

Suicide prevention and the legalisation of assisted dying / assisted suicide – new position statement from the International Association of Suicide Prevention

The International Association of Suicide Prevention published on 1 December a position statement on assisted suicide and euthanasia. It is…

02.12.2025 16:34 — 👍 0 🔁 0 💬 0 📌 0

Mental capacity matters podcast now on Spotify For those of you who like multi-tasking in the mental capacity and mental health zone, my shedinar series is now available as a podcast on Spotify as well as Apple. As a reminder, this is what we have so far (with more to come - and also updated versions of some of the introductions ones when I have a moment).

Mental capacity matters podcast now on Spotify

For those of you who like multi-tasking in the mental capacity and mental health zone, my shedinar series is now available as a podcast on Spotify as well as Apple. As a reminder, this is what we have so far (with more to come - and also updated…

02.12.2025 12:24 — 👍 0 🔁 0 💬 0 📌 0

Capacity and marriage – the changes brought about in Ireland by the Assisted Decision-Making (Capacity) Act 2015 In the Matter of AB is an extremely interesting decision from the Circuit Court in Ireland. It concerns the capacity of the man in question (the ‘relevant person’ using the language of the Assisted Decision-Making (Capacity) Act 2015) to marry. AB was in his forties and had an an intellectual disability. He had resided in a residential centre for a number of years, following the death of his parents.

Capacity and marriage – the changes brought about in Ireland by the Assisted Decision-Making (Capacity) Act 2015

In the Matter of AB is an extremely interesting decision from the Circuit Court in Ireland. It concerns the capacity of the man in question (the ‘relevant person’ using the language of…

26.11.2025 12:26 — 👍 2 🔁 0 💬 0 📌 0

Children in complex situations at risk of deprivation of liberty – in conversation with Dr Susannah Bowyer In this 'in conversation' with, I talk to Dr Susannah Bowyer, Deputy Director at Research in Practice, about the recent research paper published by Research in Practice and the National Children's Bureau (commissioned by DfE) entitled (snappily) Improving the outcomes of looked-after children and young people in complex situations with multiple needs, at risk or subject to a Deprivation of Liberty.

Children in complex situations at risk of deprivation of liberty – in conversation with Dr Susannah Bowyer

In this 'in conversation' with, I talk to Dr Susannah Bowyer, Deputy Director at Research in Practice, about the recent research paper published by Research in Practice and the National…

25.11.2025 13:31 — 👍 1 🔁 1 💬 0 📌 0

Short note: communicating the communication limb of the capacity test Re BV (Medical Treatment - Renal Cancer: Nephrectomy) EWCOP 41 (T3) is a relatively ‘routine’ medical treatment case (without, of course, diminishing its huge significance for the man in question). It is a clear and thoughtful example of the relevant statutory bodies and the court working through carefully to ensure that a patient detained under the MHA 1983 received appropriate treatment for an unrelated physical disorder.

Short note: communicating the communication limb of the capacity test

Re BV (Medical Treatment - Renal Cancer: Nephrectomy) EWCOP 41 (T3) is a relatively ‘routine’ medical treatment case (without, of course, diminishing its huge significance for the man in question). It is a clear and thoughtful…

24.11.2025 11:56 — 👍 2 🔁 1 💬 0 📌 0

Unofficial update to MCA Codes updated There are two Codes of Practice to the Mental Capacity Act 2005, one for the main body of the Act, and one for the Deprivation of Liberty Safeguards. They are statutory Codes: they have been approved by Parliament, and the MCA 2005 requires certain people to have regard to them. Those people include anyone acting in a professional capacity. Neither Code of Practice has ever been updated since they were published, the main Code in 2007, and the DoLS Code in 2009.

Unofficial update to MCA Codes updated

There are two Codes of Practice to the Mental Capacity Act 2005, one for the main body of the Act, and one for the Deprivation of Liberty Safeguards. They are statutory Codes: they have been approved by Parliament, and the MCA 2005 requires certain people to…

20.11.2025 15:21 — 👍 3 🔁 1 💬 0 📌 0

Natural justice and costs in the Court of Protection Riddle v NA EWCOP 39 (T3) raises questions about the fitness for purpose of a key plank of the costs provisions contained in the Court of Protection Rules. The case took the form of an appeal against a decision of a District Judge refusing the costs incurred by Andrew Riddle, who had sought to be appointed the professional deputy for a man, NA, but whose application had not been successful because it was ultimately shown that NA had the relevant capacity.

Natural justice and costs in the Court of Protection

Riddle v NA EWCOP 39 (T3) raises questions about the fitness for purpose of a key plank of the costs provisions contained in the Court of Protection Rules. The case took the form of an appeal against a decision of a District Judge refusing the…

19.11.2025 17:20 — 👍 1 🔁 0 💬 1 📌 0

50 years in mental health and capacity law – in conversation with Peter Edwards In this 'in conversation with,' I talk to Peter Edwards, a solicitor who has just passed his 50 year mark working in mental health (and, since it became a 'thing' mental capacity law), and who has had quite the most extraordinarily varied and significant impact in ways that you might not be aware of. The article that I mention which sets out some of the things that he has done is…

50 years in mental health and capacity law – in conversation with Peter Edwards

In this 'in conversation with,' I talk to Peter Edwards, a solicitor who has just passed his 50 year mark working in mental health (and, since it became a 'thing' mental capacity law), and who has had quite the most…

19.11.2025 09:52 — 👍 3 🔁 2 💬 0 📌 0

Book review: Consenting Children (Lisa Forsberg, Isra Black and Anthony Skelton (eds)) Book Review: Lisa Forsberg, Isra Black and Anthony Skelton (eds), Consenting Children: Autonomy, Responsibility, Well-Being (Liverpool University Press: Proceedings of the British Academy 2025, 321 pp, hardback / ebook £80) After a period where debates about the ability (both cognitive and legal) of children to make their own decisions seemed to have become largely confined to the classroom, they are now firmly back on the courtroom agenda in England & Wales, with cases over the last few years examining the (legal) capacity of children to…

Book review: Consenting Children (Lisa Forsberg, Isra Black and Anthony Skelton (eds))

Book Review: Lisa Forsberg, Isra Black and Anthony Skelton (eds), Consenting Children: Autonomy, Responsibility, Well-Being (Liverpool University Press: Proceedings of the British Academy 2025, 321 pp, hardback…

16.11.2025 16:32 — 👍 0 🔁 0 💬 0 📌 0

Holding the risk in medical treatment cases Re RS (Best Interests: Surgery and Intensive Care) EWCOP 38 (T3) is a case which demonstrates the care and thought which – rightly – should go into ensuring that those with cognitive impairments are put forward for appropriate physical procedures, and also contains some very helpful wider observations about the role of the courts in such cases. The person concerned was RS, a 18 year old man with a complex range of physical and cognitive impairments.

Holding the risk in medical treatment cases

Re RS (Best Interests: Surgery and Intensive Care) EWCOP 38 (T3) is a case which demonstrates the care and thought which – rightly – should go into ensuring that those with cognitive impairments are put forward for appropriate physical procedures, and…

08.11.2025 13:03 — 👍 1 🔁 0 💬 0 📌 0

November 2025 39 Essex Chambers Mental Capacity Report now out – and walkthrough The November 2025 Mental Capacity Report is now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Cheshire West 2, the return of LPS and where the buck stops with termination; (2) In the Property and Affairs Report: accessing Child Trust Funds and LPA fee increase; (3) In the Practice and Procedure Report…

November 2025 39 Essex Chambers Mental Capacity Report now out – and walkthrough

The November 2025 Mental Capacity Report is now out. Highlights this month include: (1) In the Health, Welfare and Deprivation of Liberty Report: Cheshire West 2, the return of LPS and where the buck stops with…

07.11.2025 16:28 — 👍 0 🔁 0 💬 0 📌 0

Capacity, decisions to end one’s own life, and the Terminally Ill Adults (End of Life) Bill Following on from my evidence to the House of Lords Select Committee considering the Terminally Ill Adults (End of Life) Bill (see here), I have recorded this which seeks to dig further into the complexities around capacity, decisions to end one's own life, and the implications for the Terminally Ill Adults (End of Life) Bill, in particular as regards the positive obligations imposed on the State by Article 2 ECHR.

Capacity, decisions to end one’s own life, and the Terminally Ill Adults (End of Life) Bill

Following on from my evidence to the House of Lords Select Committee considering the Terminally Ill Adults (End of Life) Bill (see here), I have recorded this which seeks to dig further into the…

07.11.2025 14:17 — 👍 1 🔁 0 💬 0 📌 1

Is mental capacity law law? In conversation with Professor John Coggon In this 'in conversation with,' I talk to Professor John Coggon about his - deliberately! - provocative new paper Is Mental Capacity Law Law?. We think about what 'law' means in this context, and what judges are doing in legal terms when they are judging in the Court of Protection. And I charge John with nihilism... The paper that I mention towards the end by Bernadette Wren is this one: Can the courts be viewed as an appropriate vehicle to settle clinical unease?

Is mental capacity law law? In conversation with Professor John Coggon

In this 'in conversation with,' I talk to Professor John Coggon about his - deliberately! - provocative new paper Is Mental Capacity Law Law?. We think about what 'law' means in this context, and what judges are doing in legal…

07.11.2025 12:13 — 👍 0 🔁 0 💬 0 📌 0

Fact finding in the Court of Protection In Nottinghamshire County Council v SV & Anor EWCOP 37 (T3), Lieven J has provided a helpful recap of the approach to the question of when it is necessary to carry out a fact finding hearing in the context of Court of Protection proceedings. As she noted: 48. Finding of fact hearings are relatively rare in Court of Protection cases.

Fact finding in the Court of Protection

In Nottinghamshire County Council v SV & Anor EWCOP 37 (T3), Lieven J has provided a helpful recap of the approach to the question of when it is necessary to carry out a fact finding hearing in the context of Court of Protection proceedings. As she noted:…

06.11.2025 17:56 — 👍 0 🔁 0 💬 0 📌 0

Terminally Ill Adults (End of Life) update As many will know, the House of Lords convened a Select Committee to consider the Bill, which heard from witnesses in late October / early November. It has now finished its evidence sessions. The transcripts of the oral evidence given by witnesses can be found here; their written evidence can be found here. My oral evidence to the Committee can be found…

Terminally Ill Adults (End of Life) update

As many will know, the House of Lords convened a Select Committee to consider the Bill, which heard from witnesses in late October / early November. It has now finished its evidence sessions. The transcripts of the oral evidence given by witnesses can…

06.11.2025 16:15 — 👍 0 🔁 3 💬 0 📌 0

Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights of Persons with Disabilities: Supporting the Legal Capacity of All Persons with Disabilities Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights of Persons with Disabilities: Supporting the Legal Capacity of All Persons with Disabilities (Bloomsbury, 2025, 167 pp, hardback / ebook, £81.00 / £64.80) I should start this review with a confession. I asked to be provided with this book for review out of a slight sense of duty, so as to keep myself abreast of the literature in this area.

Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights of Persons with Disabilities: Supporting the Legal Capacity of All Persons with Disabilities

Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights…

29.10.2025 18:26 — 👍 3 🔁 2 💬 0 📌 0

Deprivation of liberty update – the Supreme Court, DHSC and CQC Three important developments, on different timelines, have occurred in relation to deprivation of liberty. The first is the publication on 23 October by the CQC of their annual State of Care Report, which includes a specific section under 'groups of people of concern' on deprivation of liberty. It is a long section, but I reproduce the opening paragraphs here: We have raised serious concerns about the safeguards and the need for system-wide reform for a number of years.

Deprivation of liberty update – the Supreme Court, DHSC and CQC

Three important developments, on different timelines, have occurred in relation to deprivation of liberty. The first is the publication on 23 October by the CQC of their annual State of Care Report, which includes a specific section…

26.10.2025 09:38 — 👍 1 🔁 2 💬 0 📌 0

Termination, best interests and where the buck stops Even by the standards of the Court of Protection, Re KP (Termination of Pregnancy) EWCOP 35 (T3) is a difficult case. It concerned a 19 year old woman who, in Poole J’s understated summary had “experienced very many challenges in her life,” starting at birth when hypoxia led to an acquired brain injury. She was now 17 weeks pregnant. The questions before Poole J were:

Termination, best interests and where the buck stops

Even by the standards of the Court of Protection, Re KP (Termination of Pregnancy) EWCOP 35 (T3) is a difficult case. It concerned a 19 year old woman who, in Poole J’s understated summary had “experienced very many challenges in her life,”…

15.10.2025 11:28 — 👍 1 🔁 0 💬 0 📌 0

I hope today has brought better news.

12.10.2025 11:44 — 👍 0 🔁 0 💬 1 📌 0

Home | Pain Pro | London Shift from surviving to thriving with pain coaching

I’m so sorry to hear about this, and sending all best wishes for her recovery. My wife’s website may have some useful resources in due course: www.painpro.co.uk

11.10.2025 17:28 — 👍 1 🔁 0 💬 1 📌 0

39 Essex Chambers October 2025 Mental Capacity Report and walkthrough Welcome to the October 2025 Mental Capacity Report. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: time-specificity of capacity (again), a Welsh primer on key caselaw and urban myths around s.4B MCA 2005; In the Property and Affairs Report: two guest articles from new members of the Court of Protection on attorney elephant traps;

39 Essex Chambers October 2025 Mental Capacity Report and walkthrough

Welcome to the October 2025 Mental Capacity Report. Highlights this month include: In the Health, Welfare and Deprivation of Liberty Report: time-specificity of capacity (again), a Welsh primer on key caselaw and urban myths…

04.10.2025 08:34 — 👍 3 🔁 2 💬 0 📌 0

Motability, contracts and deputies [I set out here a press release from the Office of the Public Guardian - the 'clarification' relates to a consent order, rather than a judgment. If / when the consent order is made public I will add it to this page] On 18 July 2025, the Court of Protection clarified how vehicle contracts under the Motability Scheme should be handled when arranged by a deputy.

Motability, contracts and deputies

[I set out here a press release from the Office of the Public Guardian - the 'clarification' relates to a consent order, rather than a judgment. If / when the consent order is made public I will add it to this page] On 18 July 2025, the Court of Protection…

30.09.2025 14:40 — 👍 1 🔁 1 💬 0 📌 0

How to draft an assisted dying law – a governmental perspective from Jersey As many will know, by contrast to the position in England and Wales (and indeed Scotland), moves towards legislating for assisted dying / assisted suicide are being taken forward in Jersey as Government legislation. The draft Bill has now been published, and the draft with its accompanying report should, I suggest, make mandatory reading for Parliamentarians in 'mainland' UK jurisdictions.

How to draft an assisted dying law – a governmental perspective from Jersey

As many will know, by contrast to the position in England and Wales (and indeed Scotland), moves towards legislating for assisted dying / assisted suicide are being taken forward in Jersey as Government legislation. The…

25.09.2025 15:22 — 👍 0 🔁 0 💬 0 📌 0

Transparency in the Court of Protection – what is it good for and how long should restrictions last? By accident or design, Poole J appears to have found himself the Tier 3 transparency guru. In Re Gardner (Deceased)(Duration of Transparency Order) EWCOP 34 (T3) he made a range of important observations about (and in passing raised some questions about) the operation of the transparency framework within the Court of Protection. As Poole J identified at the outset: 1. This is the third judgment I have published in these proceedings.

Transparency in the Court of Protection – what is it good for and how long should restrictions last?

By accident or design, Poole J appears to have found himself the Tier 3 transparency guru. In Re Gardner (Deceased)(Duration of Transparency Order) EWCOP 34 (T3) he made a range of important…

25.09.2025 11:13 — 👍 0 🔁 0 💬 0 📌 0

The CRPD, the state and civil society – in conversation with Professor Peter Bartlett In this 'in conversation with,' I talk to Professor Peter Bartlett about his article "Beyond the liberal subject: challenges in interpreting the CRPD, and the CRPD’s challenges to human rights," and discuss how the CRPD challenges conventional civil and political rights, the implications for the role of the state (and what happens if the state is not benign), and what the CRPD requires of civil society.

The CRPD, the state and civil society – in conversation with Professor Peter Bartlett

In this 'in conversation with,' I talk to Professor Peter Bartlett about his article "Beyond the liberal subject: challenges in interpreting the CRPD, and the CRPD’s challenges to human rights," and discuss how…

25.09.2025 07:00 — 👍 1 🔁 1 💬 0 📌 0

Wishing won’t make it so – urban myths around s.4B MCA 2005 I was contacted, again, by a health care professional who had been told with complete confidence that the new version of s.4B MCA 2005 included in the Mental Capacity (Amendment) Act 2019 was in force. This, in turn, meant that they had been told with complete confidence that it was possible to deprive someone of their liberty in an emergency where they lacked capacity to consent to the steps required to provide them with life-sustaining treatment, or to prevent a serious deterioration in their confidence, and to rely in so doing on the protections contained in s.4B.

Wishing won’t make it so – urban myths around s.4B MCA 2005

I was contacted, again, by a health care professional who had been told with complete confidence that the new version of s.4B MCA 2005 included in the Mental Capacity (Amendment) Act 2019 was in force. This, in turn, meant that they had…

23.09.2025 10:41 — 👍 0 🔁 0 💬 0 📌 0

Anticipating the reasonableness of responses – time-specific capacity in action Darlington Borough Council v AW & Ors EWCOP 33 (T3), decided in August 2025, but only published more recently, is another in a now near-continuous stream of cases grappling with complexities of applying the time-specific MCA 2005 in real life. The facts of the case are disturbing, both in the depths of the despair that they illuminated on the part of the young person involved, and also for the fact that they are by no means uncommon.

Anticipating the reasonableness of responses – time-specific capacity in action

Darlington Borough Council v AW & Ors EWCOP 33 (T3), decided in August 2025, but only published more recently, is another in a now near-continuous stream of cases grappling with complexities of applying the…

23.09.2025 08:26 — 👍 0 🔁 0 💬 0 📌 0

The Court of Protection: a Welsh language primer in key caselaw TIRE v Carmarthenshire County Council EWCOP 81 (T2) is, as far as I know (but we would welcome correction) the first published judgment from the Court of Protection in Welsh (although many will have been delivered orally). As this Practice Direction makes clear, Court of Protection proceedings in or having a connection with Wales must be conducted on the basis that the Welsh and English languages are treated on the basis of equality.

The Court of Protection: a Welsh language primer in key caselaw

TIRE v Carmarthenshire County Council EWCOP 81 (T2) is, as far as I know (but we would welcome correction) the first published judgment from the Court of Protection in Welsh (although many will have been delivered orally). As this…

23.09.2025 07:43 — 👍 0 🔁 0 💬 0 📌 0

Alex Ruck Keene

Latest posts by capacitylaw.bsky.social on Bluesky

@capacitylaw is following 20 prominent accounts