Court of Protection Will Only Intervene If Person Lacks Capacity

Court of Protection Will Only Intervene If Person Lacks Capacity

The Court of Protection (COP) has a broad remit to make decisions about health and welfare and financial issues affecting vulnerable people. However, the recent case PH v Betsi Cadwaladr University Health Board reminds us that the COP will only intervene in a person’s best interests if there is reason to believe that the person lacks the mental capacity to make decisions.

Court of Protection

The COP was created by the Mental Capacity Act 2005 and can ‘sit’ at many different levels, from district through to circuit and high court. Its main offices are in London, but it can also have hearings in regional courts around the country.

Whilst the court can make decisions on others’ behalf; it also appoints Deputies to make day-to-day decisions for those lacking capacity. In addition, it considers one-off applications for complex or contentious cases, usually about personal welfare issues.

But what happens when a vulnerable person’s life is in danger? Can the COP intervene if the person has the capacity?

Recent Case: PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16


Aged 41, PH had a complex medical history resulting in a tracheostomy that meant he could not eat or drink and needed feeding into his stomach. PH struggled to communicate, although those who knew him understood him clearly.

In February 2022, Betsi Cadwaladr University Health Board asked the COP to resolve a dispute about PH’s transfer to a mental health rehabilitation unit and his rejection of feeding.

PH wanted to live a more “normal” life. So after initially rejecting nutrition, he re-started to ensure he was fit enough to visit a private residential property, his preferred place of residence. Judge Hayden approved an agreed order without referring to PH’s capacity to consent to medical treatment.

Some weeks later, PH refused to take nutrition but agreed to take water and medication. This fasting lasted for 41 days. Nonetheless, it was clear from numerous meetings with his psychiatrist and multiple hearings involving Judge Hayden that PH understood that he would die without food.

No Intervention Decision

Mr Justice Hayden rejected the submission to “force-feed” PH. Even though PH’s decision to refuse to feed was very distressing, the judge firmly believed that PH was able to consider matters, weigh up his options, and decide.

Judge Hayden reiterated that whilst the COP could intervene in some instances, it should only do so when a vulnerable person’s decision-making capacity is impaired somehow. He, therefore, did not see a need to make a “best interests” decision, concluding that the court should play no further role.


Clearly, this case is very distressing, but it underlines one of the guiding principles of the Mental Capacity Act 2005; that an individual has capacity unless there is clear proof to the contrary.

Where there are concerns about a vulnerable person’s capacity, the COP only has the power to make decisions on financial or welfare matters for those who can’t make decisions when needed.

If you need further information or advice about Court of Protection matters from our specialist team of lawyers, please contact us. We’re here to help.


Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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