Court of Protection Matters 

1. Meaning

The Court of Protection is a specialist court of England and Wales dealing primarily with decisions concerning adults who lack, or may lack, mental capacity to make particular decisions.

It operates principally under the Mental Capacity Act 2005 (MCA 2005). Its jurisdiction covers both personal welfare and property and financial affairs. The court can make decisions for a person, appoint deputies, determine questions about capacity, authorise or review deprivation of liberty, and supervise certain powers exercised under lasting powers of attorney. The National Archives describes it as the court making financial or welfare decisions for people who cannot make the relevant decisions themselves.

The Court of Protection is therefore fundamentally a protective jurisdiction, designed to protect autonomy, dignity, liberty, property and welfare while respecting the person's own wishes and feelings as far as legally possible.

Important 2026 development: The law concerning deprivation of liberty has changed significantly. In June 2026, the UK Supreme Court overturned the Cheshire West “acid test” approach and adopted a multifactorial assessment, including the type, duration, effects and manner of restrictions and the person's actual circumstances and response to them.

2. Legal Foundation

The principal legislation is the:

Mental Capacity Act 2005

The important provisions include:

• Section 1 — statutory principles;
• Section 2 — persons who lack capacity;
• Section 3 — inability to make a decision;
• Section 4 — best interests;
• Section 5 — protection for acts done in connection with care or treatment;
• Section 6 — limitations on acts done in connection with care or treatment;
• Section 7 — payment for necessary goods and services;
• Section 9 — lasting powers of attorney;
• Sections 15–17 — Court of Protection declarations and decisions;
• Section 16 — powers to make decisions and appoint deputies;
• Section 21A — challenges concerning deprivation of liberty safeguards;
• Section 23 — powers relating to lasting powers of attorney;
• Section 47 — general powers of the court.

The Court of Protection Rules 2017 provide the principal procedural framework.

3. Fundamental Principles

Section 1 MCA 2005 establishes five fundamental principles.

Principle 1 — Presumption of capacity

A person must be presumed to have capacity unless it is established that they lack it.

Therefore:

Diagnosis ≠ automatic incapacity.

A person cannot be treated as incapable merely because they have a disability, mental illness, dementia, learning disability or other condition.

Principle 2 — Support before declaring incapacity

A person should not be treated as unable to make a decision unless all practicable steps to help them make the decision have been taken without success.

Examples include:

• simplifying information;
• using visual aids;
• choosing an appropriate time;
• using communication assistance;
• involving trusted persons where appropriate.

Principle 3 — Unwise decisions

A person is not to be treated as lacking capacity merely because they make a decision that others consider unwise.

This protects personal autonomy.

Principle 4 — Best interests

If a person lacks capacity to make a particular decision, the decision must be made in their best interests.

Principle 5 — Least restrictive option

Before an act or decision is carried out on behalf of a person, consideration must be given to whether the objective can be achieved in a way that is less restrictive of the person's rights and freedom of action.

4. Decision-Specific Capacity

Capacity is decision-specific.

A person may have capacity to:

• choose their clothes;
• decide what food to eat;
• manage everyday activities;

but lack capacity to:

• manage complex investments;
• consent to a particular medical treatment;
• decide where to live;
• conduct particular litigation.

The court therefore does not ordinarily ask:

“Does this person have capacity generally?”

Instead, it asks:

“Does this person have capacity to make this particular decision at this particular time?”

5. The Two-Stage Capacity Test

Under Sections 2 and 3 MCA 2005, the court generally applies two stages.

Stage 1 — Diagnostic element

Is there an impairment of, or disturbance in, the functioning of the mind or brain?

Stage 2 — Functional element

Does that impairment mean that the person is unable to make the particular decision?

A person is unable to make a decision if they cannot:

1. understand relevant information;
2. retain that information long enough to make the decision;
3. use or weigh that information as part of the decision-making process; or
4. communicate their decision.

6. Jurisdiction of the Court of Protection

The Court can deal with numerous categories of matters.

A. Declarations of capacity

It may determine whether a person:

• has capacity;
• lacks capacity;
• has capacity in relation to a particular decision.

B. Welfare decisions

The court can determine issues such as:

• residence;
• care arrangements;
• contact with relatives;
• medical treatment;
• education in appropriate circumstances;
• social care;
• restrictions on movement;
• certain highly personal decisions.

C. Property and financial affairs

The Court can determine:

• management of bank accounts;
• sale or purchase of property;
• investment;
• payment of debts;
• management of benefits;
• inheritance;
• taxation-related financial decisions;
• appointment and supervision of deputies.

D. Deputies

Where appropriate, the court can appoint a deputy to make ongoing decisions for a person who lacks capacity.

A deputy may be responsible for:

• property and financial affairs; or
• personal welfare in exceptional circumstances.

E. Lasting Powers of Attorney

The Court of Protection has jurisdiction over certain disputes and protective measures concerning Lasting Powers of Attorney (LPAs).

It can intervene where there are concerns about:

• validity;
• registration;
• misuse;
• abuse;
• suitability of an attorney;
• revocation or suspension-related issues.

7. Best Interests

The best-interests test is central to Court of Protection proceedings.

Under Section 4, the decision-maker must consider all relevant circumstances.

Particular importance is given to:

• person's past and present wishes;
• feelings;
• beliefs;
• values;
• factors the person would probably consider;
• views of people involved in the person's welfare.

The court must not simply substitute its own view of what would be convenient.

The objective is person-centred decision-making.

8. Autonomy and Best Interests

There can be tension between:

Autonomy

and

Protection

For example, a person may wish to live independently even though professionals believe that doing so involves considerable risk.

The Court of Protection must not automatically choose the safest option.

It must ask whether:

• the person has capacity;
• the decision is genuinely theirs;
• the consequences have been understood;
• restrictions are necessary;
• a less restrictive alternative exists.

9. Deprivation of Liberty

One of the most significant Court of Protection matters concerns whether restrictions on a person amount to a deprivation of liberty.

Historically, P v Cheshire West established the well-known “acid test” based upon:

• continuous supervision and control; and
• not being free to leave.

However, this position has fundamentally changed.

2026 Supreme Court development

In A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, the Supreme Court held that Cheshire West was incorrect in treating the “acid test” as the decisive approach.

The new approach is multifactorial. The court must examine the person's specific circumstances, including:

• type of restriction;
• duration;
• effects;
• manner of implementation;
• the person's actual circumstances;
• their wishes and feelings;
• whether there is valid consent.

The Supreme Court emphasised that a person's expression of wishes and feelings can be highly significant.

This is a major current development in Court of Protection law.

10. Medical Treatment

The Court of Protection can decide disputes concerning medical treatment where a person lacks capacity.

Issues can include:

• life-sustaining treatment;
• artificial nutrition and hydration;
• serious medical procedures;
• surgery;
• psychiatric or physical treatment;
• treatment refusal;
• disputes between family and medical professionals.

The fundamental question is generally whether the proposed course is in the person's best interests, subject to the statutory framework and human-rights considerations.

11. Financial Abuse and Protection of Property

The Court of Protection has an important protective role where vulnerable persons may be exposed to:

• financial exploitation;
• misuse of an LPA;
• inappropriate gifts;
• suspicious property transactions;
• conflicts of interest;
• abuse by relatives or carers.

The court may require accounts and evidence, restrict powers, appoint a deputy, or make other protective orders.

12. Inherent and Protective Powers

The Court of Protection has significant procedural and protective powers.

Section 47 MCA 2005 gives it broad powers in proceedings, and case law has established that it can, in appropriate circumstances, grant injunctive relief.

For example, in A NHS Foundation Trust v G [2022] EWCOP 25, the court granted an injunction where a family member was deliberately interfering with an agreed care plan.

This illustrates that the court's jurisdiction is not restricted to merely making declarations.

13. Leading Case Laws

1. A Reference by the Attorney General for Northern Ireland [2026] UKSC 16

Principle

This is the most important current authority on deprivation of liberty.

The Supreme Court rejected the Cheshire West “acid test” and held that deprivation of liberty must be determined through a multifactorial assessment.

Relevant factors include:

• type of restrictions;
• duration;
• effects;
• manner of implementation;
• individual circumstances;
• wishes and feelings;
• consent.

Importance

The decision significantly changes the approach to deprivation-of-liberty questions in Court of Protection proceedings and applies immediately.

2. P v Cheshire West and Chester Council [2014] UKSC 19

Principle

Historically, the Supreme Court formulated the famous “acid test” for deprivation of liberty.

The case concerned people with significant disabilities whose living arrangements involved continuous supervision and control.

Importance

Although its “acid test” has now been overturned, Cheshire West remains historically fundamental to understanding the development of Article 5 and Court of Protection jurisprudence.

It established the principle that disability should not result in weaker protection of liberty.

3. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458

Principle

HL, an autistic man lacking capacity, was informally admitted to hospital but was not detained under the Mental Health Act.

The House of Lords considered whether this arrangement provided sufficient legal protection.

Importance

The case exposed the “Bournewood gap”—the absence of adequate procedural safeguards for incapacitated persons deprived of liberty without formal detention.

The later MCA deprivation-of-liberty framework was substantially influenced by this problem. The Court of Protection's deprivation-of-liberty jurisdiction therefore has deep roots in Bournewood.

4. A Local Authority v JB [2020] EWCA Civ 735

Principle

The Court of Appeal considered capacity to consent to sexual relations.

It emphasised that capacity is decision-specific and that the relevant information must be understood and weighed.

Importance

The case demonstrates that the Court of Protection may deal with highly personal decisions while still applying the statutory capacity framework.

It also illustrates the importance of distinguishing between:

• ability to understand information;
• ability to use or weigh information;
• the person's actual choice.

5. PC v City of York Council [2013] EWCA Civ 478

Principle

The Court of Appeal considered the capacity of a person with a learning disability in relation to making decisions about residence and care.

The court emphasised the importance of applying the statutory test properly rather than assuming incapacity merely from a person's intellectual disability.

Importance

The case reinforces:

Disability does not automatically equal lack of capacity.

The functional test must be applied to the actual decision.

6. Re F (Mental Patient: Sterilisation) [1990] 2 AC 1

Principle

Although decided before the MCA 2005, Re F is foundational to the development of protective jurisdiction concerning incapacitated adults.

The House of Lords considered whether sterilisation could be authorised for a person lacking capacity.

Importance

The case helped establish principles concerning:

• medical treatment;
• necessity;
• best interests;
• protection of vulnerable adults.

It influenced the later development of statutory mental-capacity law.

7. Wye Valley NHS Trust v B [2015] EWCOP 60

Principle

The case concerned medical treatment and the question of whether treatment was in the best interests of a person who lacked capacity.

Importance

It illustrates the Court of Protection's role in resolving disputes involving medical professionals, families and incapacitated adults, with particular emphasis on the individual's welfare and rights.

8. Re X (Court of Protection Practice) [2015] EWCA Civ 599

Principle

The Court of Appeal considered procedural questions concerning deprivation-of-liberty proceedings and the role of representation.

Importance

The case illustrates the importance of:

• procedural fairness;
• representation;
• participation;
• Article 5 safeguards;
• effective access to the Court of Protection.

It remains important in understanding the procedural architecture of Court of Protection cases.

9. A NHS Foundation Trust v G [2022] EWCOP 25

Principle

The Court of Protection considered whether it could grant an injunction in general proceedings.

An injunction was granted where a family member was deliberately interfering with the care arrangements of a vulnerable adult.

Importance

The case demonstrates the breadth of the court's protective and remedial jurisdiction.

14. Important Case-Law Principles

15. Court of Protection vs Mental Health Tribunal

These bodies should not be confused.

There can, however, be significant interaction between the two jurisdictions.

16. Court of Protection and Human Rights

Court of Protection matters frequently engage:

Article 5 ECHR

Right to liberty and security.

Article 6 ECHR

Right to a fair hearing.

Article 8 ECHR

Right to private and family life.

Article 14 ECHR

Protection against discrimination in enjoyment of Convention rights.

The court must therefore balance protective intervention against fundamental rights.

17. Procedural Characteristics

Court of Protection proceedings have some distinctive features.

They are often more inquisitorial and investigative than ordinary adversarial civil litigation.

The court's focus is not simply:

“Which party wins?”

Instead, it asks:

“What decision best protects the person's rights and interests under the Mental Capacity Act?”

Academic analysis of Court of Protection practice similarly describes the process as essentially inquisitorial, with the court actively assessing capacity and best interests rather than merely resolving an adversarial dispute.

18. Participation of P

A central modern principle is that the person concerned—often called P—should be appropriately involved in proceedings.

The court should consider:

• P's wishes;
• P's feelings;
• P's communication;
• P's preferences;
• P's participation;
• P's representation.

This reflects the shift away from viewing an incapacitated adult simply as the object of protection and toward recognising them as a rights-holder and participant.

19. Remedies and Orders

The Court of Protection may make orders including:

1. declaration that P lacks capacity;
2. declaration concerning P's capacity;
3. welfare decision;
4. financial decision;
5. appointment of a deputy;
6. directions concerning deputies;
7. orders concerning LPAs;
8. deprivation-of-liberty orders;
9. medical-treatment orders;
10. injunctions;
11. property-management orders;
12. orders concerning access/contact;
13. orders protecting P's finances;
14. directions concerning representation.

20. Key Challenges

A. Balancing autonomy and protection

Too little intervention may expose P to harm; too much intervention may destroy autonomy.

B. Determining capacity

Capacity may fluctuate and can be affected by:

• illness;
• medication;
• communication difficulties;
• stress;
• environmental factors.

C. Best-interests disagreements

Family members, doctors and local authorities may genuinely disagree about the appropriate outcome.

D. Deprivation of liberty

The 2026 Supreme Court decision makes the assessment more individualised and fact-sensitive.

E. Financial exploitation

The court must protect vulnerable persons while avoiding unnecessary interference with legitimate financial arrangements.

21. 2026 Position on Deprivation of Liberty

This deserves particular emphasis because it is now the current law.

The former approach:

Continuous supervision and control + not free to leave → deprivation of liberty

is no longer the controlling “acid test.”

The new approach requires a multifactorial assessment.

The court must consider:

Type + Duration + Effects + Manner + Individual circumstances + Consent + Wishes and feelings

The Supreme Court specifically rejected the proposition that lack of MCA capacity automatically means a person can never validly consent to confinement. A person who understands their environment and can express a view may, depending on the circumstances, give valid consent.

This represents one of the most significant recent developments in Court of Protection jurisprudence.

Conclusion

Court of Protection matters concern the protection of adults who may lack capacity while preserving, as far as possible, their autonomy, dignity and fundamental rights.

The Mental Capacity Act 2005 establishes the core principles:

Presumption of capacity → support → respect for unwise decisions → best interests → least restrictive intervention.

The Court can decide questions concerning capacity, welfare, medical treatment, property, finances, deputies, lasting powers of attorney and deprivation of liberty.

The leading authorities include Re F, Bournewood, PC v City of York Council, Cheshire West, A Local Authority v JB, Re X, Wye Valley NHS Trust v B, and A NHS Foundation Trust v G.

Most importantly, for the law as it stands in 2026, the Supreme Court's decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 has replaced the former Cheshire West “acid test” with a multifactorial approach to deprivation of liberty.

The central philosophy of Court of Protection law can therefore be summarised as:

Protect the person without unnecessarily replacing the person's autonomy; intervene only to the extent legally necessary, and always treat the individual as a rights-holder rather than merely as a subject of protection.