Council agrees to make changes to practice guidance on care charging following judicial review threat

Council failed to take “sufficient action” to safeguard woman in supported living accommodation after aggressive behaviour from another resident, Ombudsman finds

Proposed reforms to the Care Quality Commission’s (CQC) local authority assurance process

Background

This case concerned an application by King’s College Hospital NHS Foundation Trust to the Court of Protection for authorisation to carry out surgical treatment on LE, a 46-year-old woman with schizophrenia and diabetes, and an inpatient at the Trust’s Hospital. LE had been admitted as an emergency with diabetic ketoacidosis and a strangulated hernia, during which she suffered a cardiac arrest and required intensive care.
During her ICU admission, vasopressor medication was used to preserve vital organ function, resulting in ischaemia and the development of dry gangrene affecting multiple fingers and toes. Conservative management had not resulted in improvement and clinical opinion was that surgical amputation and reconstruction were required. Namely the amputation of all four fingers and part of the palm on LE’s left hand, and most of her left thumb, the tips of her fingers on her right hand and parts of her toes on both feet. The Trust sought to carry out reconstruction surgery on both hands to cover exposed bone at the same time as the amputation procedure. It was considered that LE had no realistic prospect of regaining functional independence without surgical intervention.
LE consistently refused amputation, maintaining that the affected tissue could recover but that if this did not happen, the operation may need to happen. LE was assessed as lacking capacity to make decisions regarding the proposed treatment and was represented by the Official Solicitor. The Trust sought court authorisation on a best interest’s basis.

Legal Framework

Capacity was assessed under sections 1–3 Mental Capacity Act 2005 (MCA 2005). It was accepted that LE lacked capacity in relation to the proposed treatment.

The court determined best interests under sections 1(5), 1(6) and 4 MCA 2005, requiring consideration of all relevant circumstances, including LE’s wishes and feelings, beliefs and values, the views of those involved in her care, and whether the purpose of the intervention could be achieved in a less restrictive way.

Relying on Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 at [39] and [45] the court reaffirmed that best interests must be assessed:

‘[39]…in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question…they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be’

And that the decision-maker must seek to consider the matter from the patient’s point of view at [45].

The court also referred to Re M, ITW v Z [2009] EWHC 2525 (COP), confirming that a person’s wishes and feelings are an important factor, but the weight to be attached to them is case-specific and depends on factors such as consistency, rationality and the degree of incapacity.

Background

This case concerned NT, a 41-year-old man with treatment-resistant paranoid schizophrenia and ADHD, who was detained under section 3 Mental Health Act 1983 in a mental health rehabilitation unit. An application by Powys Teaching Health Board and Aneurin Bevan University Health Board was made for authority to carry out a transurethral resection of a bladder tumour (TURBT) following concerns regarding a potentially life-threatening tumour in NT’s bladder.

In March 2025, NT complained of bleeding when passing urine and pain in his kidney area. Imaging revealed a 2.2cm bladder tumour, thought possible to be cancerous. The recommended treatment was TURBT, which would also determine whether the tumour was muscle-invasive. Despite initially agreeing to treatment on several occasions, NT repeatedly withdrew consent, expressing beliefs that he did not have cancer, that scans had been fabricated, and that God had told him not to proceed.

A capacity assessment in March 2025 concluded that NT had capacity, but this assessment was later criticised by the court as superficial and not compliant with the requirements of the Mental Capacity Act 2005 [7]. A subsequent joint assessment in August 2025 concluded that NT lacked capacity because, although he could understand and retain information, he was unable to use or weigh it due to delusional beliefs.

A best interests meeting determined that court approval should be sought. There was delay in bringing the application, which the court criticised, particularly given the potential seriousness of NT’s condition. Shortly before the hearing, NT requested a further private scan, which confirmed the tumour was still present and likely non-muscle invasive. Following this, NT indicated to his mother that he would agree to the procedure. Despite a level of agreement between parties, the court considered it still necessary to hear oral evidence.

Legal Framework

The court assessed NT’s capacity to make decisions regarding his medical treatment in accordance with sections 1–3 of the Mental Capacity Act 2005 (MCA 2005). It was common ground that NT lacked capacity, and therefore, the focus was on whether the proposed treatment was in NT’s best interests.

The court considered earlier authority on capacity to consent to or refuse medical treatment, including Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Re MB (Medical Treatment) [1997] 2 FLR 426, which establish that capacity is decision-specific and depends on the person’s ability to understand, retain, use and weigh relevant information, rather than on the apparent wisdom of the decision itself.

In determining whether the proposed treatment was in NT’s best interests, the court applied sections 1(5), 1(6) and 4 MCA 2005, requiring the court to consider all relevant circumstances, including NT’s past and present wishes and feelings, beliefs and values, the views of those involved in his care, and whether the purpose of the treatment could be achieved in a less restrictive way.

The court relied on Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, which confirms that best interests are not limited to medical considerations alone but must be assessed in the widest sense, encompassing medical, emotional, psychological and social welfare, and that the decision-maker should attempt to consider the matter from the patient’s perspective. The court also referred to paragraph 35 of the Aintree in that there is a strong presumption of preserving life.

When criticising the first capacity assessment of NT in March 2025, the court referred to CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3), which emphasises at [60(4)] the importance of robust, evidence-based capacity assessments that properly engage with the statutory criteria in the MCA 2005.

Legal Framework

Applications Relating to Medical Treatment [2020] EWCOP 2 establishes the procedure to be followed in relation to Court of Protection medical treatment decisions.

The starting point for any decision regarding medical treatment for those lacking decision-making capacity is section 5 of the Mental Capacity Act 2005.

Where there is agreement with regards to both decision-making capacity and best interests, then decisions can be made without an application to the Court. However, where there are concerns that the way forward is:

“(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required. ”

The guidance then makes it clear that where any of those matters arise and the decision relates to life-sustaining treatment an application to the Court of Protection must be made.

Section 1(4) MCA 2005 states “an act done, or decision made, under this Act for on behalf of a person who lacks capacity must be done, or made, in his best interests”.  Furthermore, the assessment of best interests must include consideration of all the relevant circumstances, including ther person’s wishes and feelings, and the ‘views of anyone engaged in caring for the person or interested in his welfare’.

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 states:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

Given that this decision has implications upon RS’s life expectancy, the Court considered the following:

“The authorities clearly establish that there is a presumption that steps should be taken to preserve life, but that presumption may be rebutted if in all the circumstances it is not in P’s best interests for treatment to be given or continued.”

Legal Framework

The Court considered the judgment of Munby P in Re AG [2015] EWCOP 78 at [29]-[31] where he confirmed that in the Court of Protection, unlike care proceedings, there is no requirement to establish ‘threshold’. Munby then went on to endorse the consideration given in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam) where it was stated:

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests.

… What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentallyincapable adult.

21. inevitable. But in each case, it seems to me that the four essential building blocks are the same.

• First, is mental incapacity established?
• Secondly, is there a serious, justiciable issue relating to welfare?
• Thirdly, what is it?
• Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

In An ICB v G & Ors [2024] EWCOP 13 Hayden J held at [22]-[23]:

“Fact-finding hearings at Tier 3 in the Court of Protection are extremely rare… Judges must consider, rigorously, what real purpose it is likely to serve i.e., from the perspective of informing decisions relating to P’s welfare’

…However, I am satisfied that the gravity of the allegations here and the nature

of the family’s responses has made such a hearing unavoidable. It has clear resonance for the central welfare issues i.e., as to where G will live and whether or to what extent it will be in her best interests further to promote her relationship with her family.

… fact-finding hearings in the Court of Protection, as in the Family Court, require tight judicial control and an unswerving focus both on their scope and ambit as well as on purpose…”

Furthermore, LBX v TT [2014] EWCOP 24 re-emphasises the need to deal with fact finding hearings in accordance with the overriding objective: ‘justly, expeditiously and fairly’.

The Court had regard to the principles from A County Council v DP [2005] 2 FLR 1031 which were affirmed by Re H-D-H (Children) [2021] 4 WLR 106 regarding when a fact finding hearing should be directed in proceedings under the Children Act 1989.

The factors identified in Oxfordshire should therefore be approached flexibly in the light of the overriding objective in order to do justice efficiently in the individual case. For example:

“(i) When considering the welfare of the child, the significance to the individual child of knowing the truth can be considered, as can the effect on the child’s welfare of an allegation being investigated or not.

(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.

(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.

(iv) The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.

(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.

(vi) The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.

(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.

(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.”

Additionally, the principles for fact finding hearings in private Family law cases as laid out in K v K [2022] EWCA Civ 468 was also considered.

“At the risk of repeating what has been said at [37] in Re H-N and at [41] above, the main things that the court should consider in deciding whether to order a fact-finding hearing are: (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order, (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child, (c) whether fact-finding is necessary or whether other evidence suffices, and (d) whether fact-finding is proportionate.”

The Court confirmed that ‘the overall approach to whether or not to hold a fact finding hearing is analogous between Children Act cases and Court of Protection cases.’ Namely that the facts that form the basis of any sought findings ‘must have a direct impact on the welfare decisions that need to be made in respect of P’. Furthermore, ‘the fact finding must be “necessary” for the determination of those welfare decisions’. The holding of a fact-finding hearing must be proportionate to the issues that are being determined and am assessment of proportionality, the relevant considerations include ‘the likely cost to public funds’, impact of any delay on P, and the time taken.