Serious medical treatment cases in the Court of Protection

Copyright © 2025 LexisNexis
Produced in partnership with Alex Ruck Keene KC (Hon) of 39 Essex Chambers
Practice notes

Serious medical treatment cases in the Court of Protection

Copyright © 2025 LexisNexis

Produced in partnership with Alex Ruck Keene KC (Hon) of 39 Essex Chambers

Practice notes

Medical treatment of those without capacity to consent

Generally, it is the patient's (P’s) consent which makes invasive medical treatment lawful. Where P is unable to consent to treatment, it is lawful to give P treatment which is necessary in their best interests. Section 5 of the Mental Capacity Act 2005 (MCA 2005) provides a general defence for acts done in connection with the care or treatment of a person, provided that the actor has first taken reasonable steps to establish whether the person concerned lacks capacity in relation to the matter in question and reasonably believes both that the person lacks capacity and that it will be in that person’s best interests for the act to be done. In 2018, the Supreme Court confirmed in NHS Trust v Y that, if the provisions of MCA 2005 are followed, any relevant professional guidance observed and relevant guidance in the code of practice followed, including as to the undertaking of the decision-making process, then, if there is agreement at the

Alex Ruck Keene
Alex Ruck Keene, KC (Hon) chambers

Barrister, 39 Essex Chambers

Alex Ruck Keene KC (Hon) is an experienced barrister, writer and educator. His practice is focused on mental capacity, mental health and healthcare law. He also writes extensively, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Report, the ‘bible’ for solicitors (and others) working in the area. He is the creator of the website Mental Capacity Law and Policy, providing resources and expert commentary on some of the most difficult mental capacity issues.

Alex complements his practice with a deep interest in research and education. He is a Visiting Professor at the Dickson Poon School of Law, King’s College London, a Visiting Professor at the Geller Institute of Ageing and Memory, University of West London, a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London and a Research Affiliate at the Essex Autonomy Project, University of Essex.  In addition to his academic positions, he lectures widely on the Mental Capacity Act 2005 and the Mental Health Act 1983 and trains judges, social workers, doctors, nurses and other professionals who have cause to work with them. 

Alex now spends much of his time on policy matters. He is currently a consultant on the Law Commission’s Disabled Children Social Care project, having previously been a consultant to their Mental Capacity and Deprivation of Liberty Project. Throughout 2018, he was the legal adviser to the Independent Review of the Mental Health Act 1983. He was a specialist adviser to the Joint Committee on Human Rights for their 2020 inquiry into the human rights implications of the Government’s response to COVID-19 and specialist adviser into their 2021-2022 inquiry into human rights in the care setting. He sits on the Court of Protection Rules Committee, and is also a member of the International Family Law Committee, with a specific brief to raise the profile of cross-border capacity issues. He also sits – uniquely – on both the Mental Health and Disability Committee of the Law Society of England and Wales and on the Mental Health and Disability Sub-Committee of the Law Society of Scotland. 

In March 2022, Alex was made an honorary KC, reflecting his contributions to mental capacity and mental health law outside the court room.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Capacity to consent definition
What does Capacity to consent mean?

The UK GDPR does not contain specific requirements on capacity to consent but clearly an individual must have capacity if they are to give informed consent. Generally, you can assume that adults have the capacity to consent unless you have reason to believe otherwise.

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