Decision making in respect of health and welfare

Welfare and health decisions

The Court of Protection (the court) has the power under section 16 of the Mental Capacity Act 2005 (MCA 2005) to make a decision or decisions as to the personal welfare of a person lacking capacity (P) to take the decision for themselves. The court also has the power to appoint a deputy to make the decision (see Deputies—Appointment, duties and powers—overview for further details), although health and welfare deputies are only relatively rarely appointed.

Alongside the powers set out above, the court also has the power to make a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to P to make the relevant decision. For these purposes, an 'act’ includes an omission and a course of conduct.

As a very general rule, questions relating to health and welfare matters are more usually raised by way of applications for declarations rather than for decisions. Such declarations are most commonly sought where the treating clinicians need confirmation as to whether it is lawful to provide or withhold treatment

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Private Client News

Targeted support regime: from consultations to confirmation, HMT and FCA set course for April 2026

Pensions analysis: HM Treasury (HMT) and the Financial Conduct Authority (FCA) confirmed the shape of the new targeted support regime—described as the most significant reform to the advice/guidance boundary in more than a decade on 11 December 2025. Following twin consultations conducted during summer 2025, both the government and the FCA have now set out their conclusions and implementation timelines. The new regime is scheduled to go live in April 2026, with FCA regulated firms able to apply for permissions from March 2026. Written by Ana Patwardhan, Hogan Lovells.

Private Client weekly highlights—22 January 2026

This week’s edition of Private Client highlights includes: (1) Parr v Cheshire East Council, in which the Court of Protection (CoP) set out guidance on when the criteria for appointing a Personal Welfare Deputy are met; (2) Riddle v NA, in which the CoP clarified the test for determining costs applications; (3) the Professional Conduct in Relation to Taxation is updated with guidance on using Artificial Intelligence in tax work; and (4) analysis of R(on the application of Peter Kadas) v HMRC, in which the High Court dismissed a judicial review claim against HMRC’s decision to provide the claimant’s information to the Spanish tax authority.

Question of the week: If there is a gift of a property to three beneficiaries in a Will and between the three beneficiaries they agree that one of the beneficiaries will ‘buy out’ the other beneficiaries, who should be responsible for the costs associated with the transaction?

This Q&A considers, if there is a gift of a property to three beneficiaries in a Will and between the three beneficiaries, they agree that one of the beneficiaries will ‘buy out’ the other beneficiaries, who should be responsible for the costs associated with the transaction.

High Court dismisses judicial review claim against HMRC’s decision to provide claimant’s information to the Spanish tax authority (R(on the application of Peter Kadas) v HMRC)

Tax analysis: In R (on the application of Peter Kadas), the High Court granted the claimant permission to pursue a judicial review against HMRC’s decision to share his financial information with the Spanish tax authority (the AEAT) but rejected the claim on its merits.