Mindful insights: June 2026

23 June 2026

Mark Barnett and Katie Viggers

Welcome to our dedicated mental health, mental capacity and deprivation of liberty newsletter, where we bring you significant updates and case law developments in these complex and compelling areas.

In this June edition of Mindful insights, we’ve curated the latest updates to ensure our content is informative and practical.

Key insights
Deprivation of liberty
Mental capacity
Mental health
Inquests
Spotlight on Anya Yaseen

We welcome questions about any areas mentioned in our newsletter, as well as feedback on topics you would like us to cover.

Next mental capacity and mental health forum

The acid test overturned: Deprivation of liberty after Cheshire West, 7 July

We will focus on the groundbreaking Supreme Court decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (the AGNI case). This session will be hosted by Rebecca Fitzpatrick and Ed Pollard, Partners at Browne Jacobson, together with Emma Sutton KC from Serjeants’ Inn Chambers who appeared in the case on behalf of the Official Solicitor.

We’ll explain how the ruling has fundamentally reshaped deprivation of liberty law in health and social care, explore what the judgment means in practice and discuss what your organisation should be doing now.

Key insights

Supreme Court overrules Cheshire West

In a landmark judgment handed down on 2 June 2026, the Supreme Court overruled its own 2014 decision in Cheshire West, declaring the 'acid test' for deprivation of liberty wrong in principle and incompatible with Strasbourg case law.

The ruling has taken immediate effect and has profound implications for how deprivation of liberty is assessed going forward.

Permission to appeal to the Supreme Court in “clinical decision” best interests case

Permission to appeal to the Supreme Court has been sought in relation to Towsend v Epsom & St Helier University Hospitals NHS Trust [2026] EWCA Civ 195.

In this case, the Court of Appeal held that all decisions about the care and treatment of a mentally incapacitated adult, including withdrawal of life-sustaining treatment, must be made in the patient's best interests, and that a hospital cannot unilaterally withhold treatment on clinical grounds to pre-empt court proceedings.

Assisted Dying Bill returns to Parliament

In April, the Terminally Ill Adults (End of Life) Bill failed to complete its passage into law after the number of amendments tabled in the House of Lords proved too many to be debated within the remaining Parliamentary session. However, Lauren Edwards MP has recently used her position in the Private Members Ballot to re-introduce the Bill in the House of Commons.

Should it pass a further Commons vote, it will then need to proceed through the various stages in the House of Lords once more. Our article explores what the Bill, in its current form, would mean for health and social care professionals.

Guidance and statements post AGNI Supreme Court case

Following the groundbreaking AGNI case, the Department of Health and Social Care (DHSC) has now published interim guidance setting out how to assess deprivation of liberty under the new multifactorial framework, including how to determine whether a person is consenting or objecting to their deprivation of liberty. Further guidance from DHSC will follow in due course.

Read DHSC's interim guidance

See statement from CQC

Senior Judge Hilder's note to Re X Court of Protection judges

Mental capacity

Scope of deputyship powers under the spotlight

The case of Re XY [2025] EWCOP 55 (T2) explores the limits of welfare deputies’ powers, specifically regarding decisions about internet and social media use for an incapacitated adult. It clarifies that such decisions require explicit authorisation in the deputyship order and are distinct from decisions over leisure and social activities.

Our article explores the case further and provides practical takeaways for health and social care professionals.

Can you have capacity for residence if you lack capacity for care?

In LM v Sussex Integrated Care Board [2025] EWCOP 50 (T2), the Court of Protection held that capacity assessments for residence and care were inextricably linked and could not be artificially separated, finding LM lacked capacity in both domains.

The case illustrates that whilst capacity is decision-specific, courts must avoid artificial compartmentalisation where decisions are so closely interrelated that separation would be unrealistic.

Further provisions of the Mental Health Act 2025 (MHA 2025) in force

On 6 April 2026, two further provisions of the MHA 2025 came into force, one of which has significant practical implications for private care providers and NHS commissioners.

Section 51 closes a longstanding gap in human rights protection by treating private care providers as "public authorities" under the Human Rights Act 1998 when providing section 117 aftercare services and when treating or assessing psychiatric patients, whether detained or informal, under arrangements made or funded by an NHS body.

Mental health crisis care and the legal gap in emergency departments

An interim report published by the Health Services Safety Investigations Body in April 2026 highlights a significant and longstanding legal gap: there are no clear powers to lawfully prevent vulnerable individuals from leaving an emergency department while awaiting mental health assessment or admission under the Mental Health Act.

Our article examines the report's key findings and recommendations and sets out practical steps for healthcare organisations.

Impact of PSIRF on preparing for inquests

In May, we held a Shared Insights session focussing on how the Patient Safety Incident Response Framework (PSIRF) and coronial processes can work more effectively together to ensure that coroners receive the information they need for inquests while preserving PSIRF's core principle of fostering a learning culture within healthcare.

Read our session note

See our PSIRF inquest toolkit

Spotlight on Anya Yaseen

Anya Yaseen, Senior Associate

We are delighted to shine a spotlight on Anya, who was recently promoted to Senior Associate within Browne Jacobson’s mental health and capacity team. Anya shares how she found her way into this specialist area of law, what keeps her motivated and a courtroom mishap she has never quite forgotten.