Mental Capacity in Practice

The Mental Capacity Act in practice.

Older woman sat in wheelchair looking down an empty road

Cheshire West overturned: Supreme Court Ruling

8 June 20268 June 2026
Mental Capacity in Practice

On the 2nd June 2026, a significant Supreme Court Ruling determined, with immediate effect, that Cheshire West v P (2014) UKSC 19 was overturned. In its simplest form the key parts of the ruling states:

The Acid Test, formed in Cheshire West, which identifies the threshold for when a Deprivation of Liberty (article 5, ECHR) is present, is no longer to be applied. Returning to rely on Guzzardi v Italy (1981) 3 EHRR 333.
In the circumstances where a person lacks capacity for their care and treatment, they can give ‘subjective consent’, or what we might describe as implied consent through compliance. Thus, no Deprivation of Liberty Safeguards (DoLS) would be needed in these circumstances.

Withdrawing money from an ATM (cash machine)

Issues with Appointeeships

1 June 202614 May 2026
Mental Capacity in Practice

In a previous blog, we considered the basics of becoming an appointee, providing an overview of the role and initial limitations.

Since then, a guest blog by Alex Cisneros was included in Essex 39’s Compendium Mental Capacity report for December 2025, which dug deeper into the practical process. Cisneros’ report is a very interesting read, and brings to light some of the implied difficulties and concerns.

Mental Capacity and the ‘White Leopard’

18 May 202614 May 2026
Mental Capacity in Practice

The Mental Capacity Act (2005) upholds a person’s rights to autonomy, providing five core principles that drives these values in practice. It directs that Mental Capacity is decision and time specific, that all decisions should be appropriately supported, and respecting their right to make what others might call an ‘unwise decision’. Examples of a specific decision might be choice of residence, contact with a set person(s), a decision over treatment, conducting legal proceedings, managing property and finances etc.

Elderly mother and daughter walking in park. Mother uses walking frame, while daughter helps support her.

Mental Capacity training in care homes

4 May 202628 April 2026
Mental Capacity in Practice

While the Mental Capacity Act (2005) is a statutory piece of legislation, that is actively required within the healthcare setting, it is not a part of ‘mandatory’ training that health and care professionals are required to undertake. This is one of the many reasons why the application of the Mental Capacity Act is so inconsistent between different care homes and between different healthcare providers.

Displacing the presumption of capacity

6 April 202616 March 2026
Mental Capacity in Practice

The Mental Capacity Act (2005) has five core principles that establish the guiding values of the legislation that it lays out. Principle #1 is the presumption of capacity – that a person’s decision-making for a specific matter at a specific time is assumed, and that the person themselves has ‘nothing to prove’.

Assessment: Form filling on a clipboard while interviewing a young man who is sat just out of focus.

Insights from case law: A checklist for Mental Capacity Assessments

30 March 202616 March 2026
Mental Capacity in Practice

In February 2025, an important appeal case was heard before Mrs Justice Theis regarding the capacity of an individual, known as CT. The case is instructive as it includes a number of important observations, as well as a list of recommendations that we might use as a ‘checklist’ for assessments.

Contact meeting between relevant person and their representative

Mental Capacity Assessments: How to avoid undue influence

23 March 202611 April 2026
Mental Capacity in Practice

When assessing mental capacity, it is vital that the assessor is aware of any persons who may have an impact on the individual’s decision-making.

Out of focus woman signing an important document.

Law Commission Report: Modernising Wills

16 March 20262 March 2026
Mental Capacity in Practice

The Law Commission for England and Wales has published its report on Modernising Wills, with the purpose of updating the legislation of the Wills Act (1837).

Mental Capacity Act (2005): Excluded decisions

9 March 20262 March 2026
Mental Capacity in Practice

The Mental Capacity Act (2005) includes a list of excluded decisions, which cannot be made on behalf of another individual or in their ‘best interest’. These exclusions are outlined in section 27:

Man with learning disability getting married

What is the protection imperative, and how does it relate to Mental Capacity?

2 March 202621 February 2026
Mental Capacity in Practice

In Mental Capacity case law, we often encounter judgements that warn us against the ‘protection imperative’ or adopting a ‘paternalistic approach’ when it comes to supporting vulnerable people. But what do these phrases really mean?

In this blog, we look at the broad definitions of the protection imperative and the paternalistic approach, providing examples of cases that explain these terms in context, and how they apply to professional practice.