Sam Karim KC and Aisling Campbell acted for the NHS Leicester, Leicestershire and Rutland ICB in the recent case of Leicester County Council v P and Anor [2024] EWCOP 53 (T3).

In this case, the Vice President of the Court of Protection clarified that:

  • The use of sections 5 & 6 of the Mental Capacity Act 2005 (MCA) are not limited to emergency situations,
  • The Court does have power to make anticipatory declarations of incapacity under section 15 of the MCA, and
  • The jurisdiction to make anticipatory declarations is fact specific having regard to the preservation of the person’s autonomy, the “risk” of the person losing capacity, and considering, “other ways of managing the situation, such as inviting… [the person] to enter into an advanced declaration or relying on necessity” [137(5)]

This is a significant case for all Court of Protection practitioners and provides a useful guidance in cases of fluctuating capacity and when anticipatory declaration are appropriate, or indeed, it is simply not necessary to make any declaration because of sections 5 and 6 of the MCA.

To learn more about this case and these issues, Sam Karim KC and Aisling Campbell will be hosting a bitesize virtual seminar on 31 October 2024 at 4:45pm. Register for free.

Sam Karim KC is the head of the Court of Protection team and is ranked as a leading silk in directories who refer to him as “…unflappable…[and that]  his advocacy is outstanding..” Aisling Campbell is also ranked as a leading junior in this area and is referred to being a, “… fierce advocate on behalf of her clients”.

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