Court of Protection case update: July 2025

Macpherson v Sunderland City Council [2025] EWCOP 18 (T3) (22 May 2025)

This hearing has been listed on referral from the Court of Appeal to determine two questions:

Does Ms Macpherson have capacity to conduct her appeal against the decision of Poole J on 22 January 2024?
Did Ms Macpherson have capacity to conduct the contempt proceedings on 22 January 2024?

The reasons and background to the referral are set out in MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579 (18 December 2024).

The case concerns Ms MacPherson, the mother of FP who is the subject of ongoing Court of Protection proceedings. Ms MacPherson holds strong beliefs that her daughter is being persecuted by healthcare and other professionals and the courts, and she has used social media as a platform to voice these beliefs. Within the Court of Protection proceedings, injunctive orders were made in 2022 which stated that Ms MacPherson “must not post or, having already posted, must take down material relating to FP which she had placed on the internet.”

Related Articles

The final say

Producing robust capacity assessments and the approaches to assessing capacity

Cross-border deprivation of liberty

Dealing with unexplained deaths and inquests

Court of Protection case update: May 2025

Ms MacPherson breached these injunctions and, at a committal hearing on 22 January 2024, a sentence of four months immediate imprisonment was imposed on her: Sunderland City Council v MacPherson [2024] EWCOP 8 (22 January 2024).

On 21 March 2024, Ms MacPherson filed an Appellant’s Notice accompanied by three draft Grounds of Appeal. Following a conference with Ms MacPherson, her instructed solicitor and counsel had concerns about her capacity to appeal the proceedings. Ms MacPherson declined to participate in a capacity assessment and an application was made to the Court of Appeal under Rule 35.4 CPR 1998 seeking permission to instruct an expert to undertake a paper-based assessment of her. That application was granted and the paper based assessment was undertaken by Dr Prabhakaran which concluded: “This suggests that [the Appellant’s] persecutory beliefs persist, even when presented with evidence that could contradict them. Delusions are firmly held beliefs that persist despite evidence disproving or challenging them. For the individual experiencing them, these beliefs feel entirely real and are often resistant to change, regardless of efforts to challenge or disprove them. Based on the information reviewed, it is reasonable to consider, on the balance of probabilities, that [the Appellant’s] beliefs may have reached the threshold of delusional intensity.”

The current hearing had been listed following further written questions being put to the expert.

Legal framework

The court acknowledged the relevant statutory provisions at sections 1, 2 and 3 of the MCA 2005, in relation to determining capacity and the inability to make decisions.

The caselaw regarding capacity to conduct current and past proceedings is set out in Johnston v Financial Ombudsman Service [2025] EWCA Civ 551 (08 May 2025) [38 to 43].

In addition, the two-stage test in A Local Authority v JB (Rev1) [2021] UKSC 52 [66 to 79] notes:

“The first question is whether P is unable to make a decision for himself in relation to the matter. If so, the second question is whether the inability is because of an impairment of, or a disturbance in the functioning of the mind or brain.”

The case of V_v_R_(2011) EWHC_822_(QB) provides an example of the application of the MCA 2005 principles to a decision whether a person lacks capacity to conduct litigation. This case concluded that the claimant had “difficulties rather than a straightforward inability to weight the evidence and make relevant decisions.”

The observation of Poole J in Public Guardian v RI and Others [2022] EWCOP 22 [27] is of relevance when considering a claimant’s capacity over a number of years:

“… Ideally, where there is a dispute about past capacity which the court is required to determine, it would be helpful to have evidence as to,

The certificate provider’s experience …
Evidence from carers and family members …
Medical evidence, capacity assessments, assessments for benefits, records from carers or activity centres, or other professional evidence roughly contemporaneous with the relevant date …
An assessment by a suitably qualified and experienced person of P’s current capacity and reasoned opinion as to their capacity … at the relevant time, such opinion being informed by review of relevant medical records, contemporaneous assessments, and the evidence from carers and family members.”

The case of Cannon v Bar Standards Board [2023] EWCA Civ 278 refers to the question of capacity to conduct litigation at the time of the proceedings where an expert does not have access to all of an appellant’s medical records.

A summary of the law in relation to capacity to conduct litigation is set out in Q, Re (Rev1) [2022] EWCOP 6 (24 February 2022) [24].

A concise summary of the legal framework relied on by the respondent local authority is at paragraphs 45 to 48.

Judgment

The Court considered the letter of instruction to the expert who carried out the psychiatric assessment of Ms MacPherson, details of which are at paragraph 49. The Court noted that the written and oral evidence of the expert was undermined in a number of respects and, as such, limited weight was placed on his conclusions. Reasons for this are given at paragraph 51 and are partly due to the fact that he was not able to assess Ms MacPherson in person and he did not have access to her medical records.

The Court considered the expert evidence against the broader evidential canvas and noted that the proceedings relating to Ms MacPherson’s daughter (FP) had been going on for a very long time. Throughout that period Ms MacPherson had held strong views on the treatment of her daughter, and these views had not changed.

It was noted that Ms MacPherson had continued to conduct hearings, whether with the assistance of legal representatives or not, with “what has been described as her misguided and entrenched opinions.” The Court also highlighted that Ms MacPherson had presented as ‘difficult’ throughout proceedings and made reference to the overriding objective in rule 1.1 The Court of Protection Rules 2017 noting that “In assessing litigation capacity it is important not to conflate this type of behaviour, coupled with strongly held views as evidence of lack of capacity. Each situation is, by definition, very fact specific.”

The Court determined that the OS had not established to the required standard of the balance of probabilities that Ms MacPherson lacked capacity to conduct the proceedings in January 2024.

Furthermore, the Court found that Ms MacPherson had capacity to conduct the appeal

Full Judgment: Macpherson v Sunderland City Council [2025] EWCOP 18 (T3) (22 May 2025)

University College London Hospitals NHS Foundation Trust v PK & Anor [2025] EWCOP 17 (T3) (14 May 2025)

The case concerned PK, a 73-year devout Muslim. In 2019 PK was diagnosed with mixed vascular and Alzheimer’s dementia. Since then, his health has progressively deteriorated owing to falls and transient ischaemic attacks, resulting in a nasogastric (NG) tube being inserted as he could not safely swallow. Although PK was unable to make speech or sounds, he was able to look around and make eye contact. PK was assessed as “not in a prolonged disorder of consciousness and was conscious of himself and his environment.”

On 27 January 2025 PK was assessed as lacking capacity to make his own decisions regarding care and treatment. This was not in dispute.

The Trust’s application sought a declaration that it was not in PK’s best interests to receive clinically assisted nutrition and hydration (CANH), without which he would likely pass away in 1-3 weeks. The OS and PK’s family opposed the application on the grounds that that he showed signs of consciousness when his family were present and when familiar topics, such as his football team, were mentioned. Additionally, due to his faith and personal feelings, PK would not want for his life to end prematurely, and this had been expressed to his family prior to his health deteriorating.

The Court was invited by the Trust to make a judicial visit to PK which the OS and PK’s family opposed. The Court declined the invitation.

Legal framework

The Court gave regard to sections 1 and 4 of the Mental Capacity Act 2005 (MCA 2005) detail the principles in relation to persons who lack capacity and best interest decisions, and the MCA 2005 Code of Practice [5.31] outlines how someone’s best interests should be worked out when making decisions about life-sustaining treatment.

The caselaw in relation to best interests and the wishes and feelings of P is set out at paragraphs 50 to 59. Of note, the Court considered Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 in which Lady Hale held:

“[35] The authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.”

“[39] 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;… 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.”

The case of M v Mrs N & Ors [2015] EWCOP 76, notes that the wishes and feelings of P are always to be afforded great respect, but that they will rarely, if ever, be determinative of P’s best interests and this was balanced against Briggs v (1) Briggs (2) Walton Centre NHS Foundation Trust (3) Wirral CCG (No.2) [2017] 4 WLR 37 whereby it was concluded that the determinative factor in deciding what was in P’s best interests was what he would have wanted t o do.

The Court considered the legal principles set out in PL v Sutton Clinical Commissioning Group [2017] EWCOP 22 [13] in relation to whether withholding or withdrawing life-sustaining treatment would be in P’s best interest.

Of significance in the case of PK, the Court considered NHS South East London Integrated Care Board v JP & Ors [2025] EWCOP 4 (T3) [15] in which Hayden J said:

“[15] In resolving a ‘best interests’ decision, the judge must always consider the broader evidential canvas and the imperative to determine, to the extent that it may be possible, what the protected party (P) would want for themselves. JP did not make any advanced decision, and so it is his family who must be the conduit by which his views are understood and articulated in the courtroom.”

Judgment

Careful consideration was given to the evidence of the clinicians and that of PK’s family when determining PK’s best interests [62].

When considering PK’s present wishes in relation to the NG, the Court acknowledged that they were not known but accepted that his present feelings were, “at the very least, influenced by the enjoyment he receives from being with his family.”

The Court “unhesitatingly” agreed with the evidence provided by PK’s family in relation to his past wishes in respect of continuing treatment. It was noted that PK would feel that all life is of value and was to be celebrated and enjoyed with family.

The Court also considered that PK’s past and present beliefs and values were deeply rooted in his devout religious beliefs and his family life. The Court noted that there was “significant benefit to PK of living and dying in accordance with how he understands his devout Muslim faith” and acknowledged that, despite his medical conditions, PK remained an active family man.

The Court acknowledged that it was likely that there would be no improvement in PK’s condition but noted that it did not follow that his treatment was futile [64].

The Court concluded by noting that, although it was departing from the evidence of two experienced clinical witnesses, it determined that it was in the best interests of PK for him to continue to receive CANH through his NG tube.

Full Judgment: University College London Hospitals NHS Foundation Trust v PK & Anor [2025] EWCOP 17 (T3) (14 May 2025)

Niamh Brennan and Sarah Hutchinson are pupil barristers at Spire Barristers.