Court of Protection considers interaction between Mental Health Act and Mental Capacity Act

In two recent cases involving women with anorexia, the Court of Protection has considered important jurisdictional and procedural matters.

The first reported decision relates to ‘Patricia’ (Patricia -v- Cygnet Healthcare Limited and others) [2026] EWCOP29.

The case has been considered by the Court of Protection before. In 2023, the Trust sought an order that she should not be fed by naso gastric tube by compulsion. Making such an application to court was advisable because of the decision in Nottinghamshire Healthcare NHS Trust -v- RC [2014] EWCOP 1317, in which Mostyn J said:

“In my judgment where the approved clinician makes a decision not to impose treatment under section 63, and where the consequences of that decision may prove to be life-threatening, then the NHS trust in question would be well advised, as it has here, to apply to the High Court for declaratory relief.”

In 2025 Patricia’s case returned to court in which it was indicated that circumstances had changed, the treatment plan without any forced feeding had failed and discharging the previous orders would allow the clinicians to work out what is best for Patricia, without the limits of the restrictions, in an effort to try and save her life.

When returning the matter to court, it was necessary to first determine the jurisdiction of the Court of Protection to make decisions about treatment, by way of force feeding, notwithstanding Patricia was detained under the Mental Health Act. Patricia sought an order that (a) she has capacity to decide whether or not to accept calories whether by force feeding or orally, that (b) it was not in her best interests and also contrary to Article 3 of the European Convention on Human Rights (protection from torture, inhuman or degrading treatment) to be subject to further forcible feeding. Patricia also challenged that the hospital should have obtained an independent second opinion in respect of the use of forced feeding.

Patricia asserted that the Court of Protection had jurisdiction to make those decisions, this was disputed by the hospital and Patricia’s family members.

Patricia, now 26, has an established diagnosis of anorexia nervosa. She is currently detained in hospital under the Mental Health Act and had been fed by naso gastric tube against her wishes. Such treatment can be carried out under the direction of the Responsible Clinician under the framework of the Mental Health Act. The hospital indicated that without this, they would not be able to treat Patricia, with life threatening consequences.

The case considered essentially a technical argument, did the Court of Protection have the power to consider a treatment decision being made under the auspices of the Mental Health Act?

The judge considered, first, that there is reason to believe that Patricia lacks capacity to make decisions about force feeding, and therefore comes within the remit of the Court of Protection.

The court considered the interaction between section 63 and section 145 of the Mental Health Act (establishing that force feeding can amount to medical treatment for a mental disorder and can be given under the direction of a Responsible Clinician, even when the patient objects to it), and section 28 of the Mental Capacity Act 2005. This indicates:

‘(1) Nothing in this Act authorises anyone—

(a) to give a patient medical treatment for mental disorder, or

(b) to consent to a patient's being given medical treatment for mental disorder,

if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.

It was argued on behalf of Patricia that section 28 only applies to the Court of Protection positively authorising or consenting to treatment on behalf of a patient. It does not extend to a declaration of best interests that forcible feeding is against Patricia's interests. The counter argument was that the effect of granting the application would be to intervene in the treatment plan being implemented by clinicians and that section 28 of the Mental Capacity Act was a catch all provision encompassing all forms of treatment.

The judge considered that the Court of Protection did not have jurisdiction to intervene in treatment decisions imposed by the Responsible Clinician under the Mental Health Act. The rationale confirmed:

• The scope of section 28 of the Mental Capacity Act is not limited to making positive treatment decisions. Treatment and non-treatment are two sides to the same coin.

• Granting the declaration would have the effect of requiring the hospital to cease a treatment plan that is considered clinically appropriate and being provided under section 63 of the Mental Health Act.

The judge also noted that the explanatory notes to the Mental Capacity Act support the proposition that the Court of Protection cannot intervene in any treatment given under the Mental Health Act.

It was accepted that Patricia would be entitled to bring judicial review proceedings in respect of the section 63 treatment, and this would be the available the legal route to challenge the Responsible Clinician’s decision under the Mental Health Act. Judicial review would also enable the court to consider the human rights arguments.

Some two weeks later, Mrs Justice Theis considered the case of Birmingham and Solihull Mental Health NHS Foundation Trust v CG [2026] EWCOP 37, concerning a 36 year old woman with a diagnosis of anorexia nervosa and other complex mental health conditions. Her condition is such that she is at real and immediate risk of death.

The Trust considered that it should not compel treatment and applied to the Court of Protection seeking declarations about CG’s capacity and approval of the proposed course of action. The treating clinicians’ view was supported by an independent second opinion.

The Official Solicitor had raised the question of whether the proceedings out to be brought at all, and if so whether the Court of Protection or High Court had jurisdiction to make the orders sought. The trust subsequently sought to withdraw the application.

The Official Solicitor noted that there was unanimity amongst the treating team that treatment under the Mental Health Act was not appropriate, that there was agreement with the clinical plan from the patient and those concerned with the patient’s care, and that this was supported by an external independent second opinion.

Mrs Justice Theis noted the recent decision in Patricia’s case in which it had been concluded that the Court of Protection lacked jurisdiction in the circumstances of that case. She considered legal argument as to whether such applications ought to be brought to the Court of Protection where the patient lacked capacity, or to the high court. There was no criticism of the trust in relation to seeking to bring the application and subsequently seeking to withdraw it.

The court endorsed a list of questions prepared by the parties jointly for mental health providers to consider before deciding whether to make an application to court in relation to the proposed treatment plan for a patient with anorexia lacking capacity to make those decisions:

1. Is there any dispute that the patient lacks relevant capacity?

2. Is there any material dispute among the clinicians as to the treatment plan and what treatment is in the patient’s best interests?

3. Does the patient object to the treatment plan?

4. Is there a dispute as to the treatment plan and what treatment is in the patient’s best interests, or as to the need to obtain further medical opinions before a decision is reached:

   1. from those with an interest in the patient’s welfare; and or

   2. from any Independent Mental Capacity Advocate appointed in respect of the patient?

5. Is there any identified medical professional who proposes to offer alternative treatment to that which is in the treatment plan?

6. Has the NHS Trust obtained an independent external second opinion from an appropriately qualified and experienced clinician (where practicable)?

7. Is there any material dispute from the author of the second opinion as to the treatment plan and what treatment is in the patient’s best interests?

8. Has the NHS taken all reasonable and practicable steps short of making an application to the Court to resolve any material dispute?

9. Is the way forward finely balanced?

10. What impact would the NHS Trust bringing / the patient participating in legal proceedings have on the patient’s welfare?

The parties agreed that, if the answer to any of (1) – (5) or (7) – (9) is ‘yes’, that would suggest that the mental health provider would be ‘well advised’ to make an application to the Court, but if the answer to all of (1) – (8) is ‘no’ then the provider should consider very carefully whether there is any need to make an application.

In addition to the decision whether an application needs to be made, or not, there must be careful consideration given as to whether any application should be made in the Court of Protection or the High Court, involving the Inherent Jurisdiction, or both. The court, ultimately, did not determine the jurisdiction point but gave guidance that any application issued in these circumstances needs to very clearly set out why that particular procedural route has been taken, what declarations are being sought and, if required, address the applicability, or not, of the relevant law under the Mental Capacity Act.

This case provides helpful guidance on the interaction between the Mental Health Act and Mental Capacity Act, the jurisdiction of the court, and whether court approval is needed in cases where it is proposed not to give certain treatment under the Mental Health Act. Whilst the cases considered technical legal matters, these cases are deeply personal and challenging for those involved.

Find out more about our Health and Social Care expertise or contact us to discuss how we can help.