Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3)

[2026] EWCOP 10 (T3)Case No COP 20027136
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 February 2026
Before
MRS JUSTICE THEIS DBEVICE PRESIDENT OF THE COURT OF PROTECTION
Between
Cwm Taf Morgannwg University Health BoardApplicantRW (By his litigation friend, the Official Solicitor)RespondentsMeinir EvansRespondent
Thomas Jones (instructed by NWSSP Legal & Risk Services) for Applicant for The First Respondent was not representedArianna Kelly (instructed by the Second Respondent) for Second RespondentHearing Hearing date: 19 th and 22 nd January 2026Judgment date: 12 th February 2026
Approved Judgment............................This judgment was delivered in public but a transparency order dated 19 January 2026 is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of RW must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]The applicant is Cwm Taf Morgannwg Health Board (the Health Board) and the second respondent is Ms Evans, RW’s attorney in respect of property and affairs and health and welfare. RW is a party but has not been represented at either of the hearings before me on 19 and 22 January 2026.[2]RW is a 72 year old man who has resided in a care home for a number of years. He has no family members. He has a background of advanced mixed dementia (Alzheimer’s disease and vascular dementia), type 2 diabetes mellitus, hypertension, seizures, and a significant traumatic brain injury sustained in 2022. RW is wholly dependent on the care home for all his personal care needs.[3]Following a seizure on 24 December 2025 RW was admitted to hospital which the Health Board is responsible for. The hospital was informed by the care home on 29 December 2025 that RW had no family and his solicitor, Ms Evans, was his lasting power of attorney who was to be contacted. Ms Evans sought an update from the ward on 2 January 2026 and was informed RW was doing better.[4]Due to multiple episodes of hypoglycaemia by 8 January 2026 the hospital had tried nasogastric (NG) tube feeding, which, following RW pulling at his cannula, had concluded it would not be safe to continue. As RW was not taking diet orally or his medications it was documented he had reached his baseline function. He had completed seven days of intravenous antibiotics, subcutaneous fluids were prescribed for hydration and the Health Board accepted the focus shifted to comfort care, with anticipatory end-of-life medications prescribed for use if required.[5]Although Ms Evans attended the ward to visit RW on 13 January 2026 the hospital first contacted her on 15 January 2026 to discuss RW’s treatment plan. This was after Ms Evans had issued proceedings on an urgent basis on 14 January 2026 seeking an order ‘That it is in [RW’s] best interests to be treated for any reversible condition in hospital and discharged to the [care home] when medically fit for discharge’.[6]HHJ Hilder, sitting as a T3 judge of the Court of Protection, made urgent directions on 15 January 2026, reconstituted the proceedings so that the Health Board was the applicant, directed updated evidence and listed the matter before me on 19 January 2026. I heard submissions at the hearings on 19 January 2026 and 22 January 2026, directed further written submissions on issues that had arisen, with directions leading to this judgment being handed down on 12 February 2026.[7]The Health Board accept that there were failures in communications with Ms Evans and apologise to her and to the court for that failure. They are right to do so. Very significant decisions were being made about RW’s care which Ms Evans, as RW’s health and welfare deputy, should have been consulted about.[8]When Ms Evans was consulted, and there was an opportunity for a multi-disciplinary team (MDT) meeting which Ms Evans attended, a consensus was reached as to the plan for RW’s care and treatment going forward. In essence, the plan agreed was for RW to return to the care home who are experienced in managing his day to day care with an agreed ceiling of care. RW returned to the care home on 23 January 2026.[9]Sadly, RW passed away on 27 January 2026. He was in his own room and in the presence of care staff who knew him well.[10]Ms Evans seeks two matters in her written submissions.[11]First, a declaration that the acts and omissions of the hospital to stop active treatment of RW on 6-8 January 2026 onwards while RW remained in hospital and was not being given oral nutrition or hydration was unlawful. She submits the unlawfulness arises out of the lack of any effort to seek out RW’s wishes and feelings, the lack of any consultation with the LPA, the lack of any consultation with those involved in caring for RW at the care home, the hospital not seeking or obtaining any appropriate information in RW’s care needs, and what support he needed with feeding, the hospital reaching a premature and unevidenced conclusion that he would not eat or drink, RW becoming apparently malnourished and dehydrated while conscious and alert and residing in a care setting, and the hospital’s course of conduct and omissions in offering RW appropriate support with his care being contrary to his best interests. Ms Evans is clear that had she been consulted as his LPA together with the care home she would have directed he be returned to the care home who had experience of feeding and caring for RW.[12]Second, for the Health Board to pay her costs of this application on an indemnity basis.[13]The Health Board does not oppose the making of a declaration of unlawfulness on the basis that there has been a failure to comply with the Mental Capacity Act 2005 MCA 2005), subject to the court concluding that it has jurisdiction to make such a declaration. The Health Board resists the submission that the court make findings about the allegations levied against the Health Board without hearing evidence, and submits it would not be appropriate for the court to make any findings about what could have happened if certain actions were done differently. The court has not heard evidence on those matters and that issue will now more appropriately fall to the Coroner.[14]The Health Board resists the application for costs on the grounds that the threshold for departing from the usual costs rule has not been crossed.[15]Ms Evans informed the court she has notified the Care Inspectorate Wales of what has taken place.

Relevant background

[16]Ms Evans was appointed RW’s health and welfare and property and affairs lasting power of attorney (LPA) in 2020. This LPA was registered with the Office of the Public Guardian (OPG) in 2020. Ms Evans is a solicitor specialising in Court of Protection work.[17]In her statement Ms Evans states she sent her LPA to the Health Board during an earlier admission by RW to hospital on 8 December 2025. RW was discharged back to the care home on 16 December 2025.[18]According to Ms Evans, she was informed about RW’s admission to hospital on 24 December 2025. Ms Evans sought an update from the hospital on 2 January 2026 when Ms Evans states she was informed RW was doing much better. Following this Ms Evans kept in touch with the care home anticipating that RW would be returning there. Ms Evans reports the care home was informed by the hospital on 7 January 2026 that RW was on track with his medication, but there was no chance of discharge. On 9 January 2026 the care home received a discharge summary.[19]According to the Health Board’s written evidence, on 25 December 2025 RW’s presentation deteriorated and on 26 December 2025 emergency end of life medications were prescribed to be readily available should RW become agitated and distressed. On 29 December 2025 Dr X, Consultant Physician responsible for RW’s care, decided to continue with seven days of antibiotics, reinstated the National Early Warning Score (NEWS) and rapid response calls. It is noted the care home confirmed RW does not communicate with them, he has no family and his solicitor is his LPA who was to be contacted. On 6 January 2026 due to multiple episodes of hypoglycaemia Dr X advised attempting RW with NG tube feeding. It was tried, RW did not tolerate it and it was rendered unsafe due to the risk of the tube dislodging, leading to aspiration. On 8 January 2026 RW had removed his NG tube and the clinical view was that the risk of re-insertion would outweigh the benefit. The Health Board state this is in accordance with NICE guidelines (NG 97) which state ‘studies found no good evidence that people who had tube feeding lived any longer than people who did not. There is also no good evidence that tube feeding made any difference to people’s weight or improved how well-nourished they were’. It was noted that RW was not taking diet orally and was not taking his medication. It was documented that he had achieved his baseline function. Subcutaneous fluids were prescribed for hydration and the focus shifted to comfort care, with anticipatory end-of-life medications prescribed for use, if required. RW was maintained on comfort care measures with regular oral care, repositioning and pressure area care.[20]On 12 January 2026 Ms Evans states she received a call from the care home who had received a call from the hospital indicating that treatment had been withdrawn and RW had been placed on end of life care. Ms Evans contacted the hospital and reports from the hospital were not entirely consistent. Ms Evans states she was informed by ward staff that a Dr X had taken a decision to withdraw RW’s treatment and place him on end of life care.[21]On 13 January 2026 Ms Evans states she visited RW in hospital and to speak with Dr X. Ms Evans considered what she had been told by ward staff the previous day was correct. Ms Evans states RW was conscious when she visited, and was able to recognise her. According to Ms Evans, the hospital were reluctant to accept that she held RW’s LPA. She states she spent much of the day at the hospital seeking to confirm that the hospital accepted that she was RW’s health and welfare decision maker, that she did not agree with him being placed on palliative care and her decision was that he should be treated insofar as possible and discharged when medically fit.[22]On the afternoon of 13 January 2026 Ms Evans instructed counsel who sought to obtain the relevant contact email address for service in the event of an urgent application was made. Counsel for Ms Evans had a brief telephone conversation with who she understood to be the lead nurse on Court of Protection matters for the Health Board. Whilst initially stating that the Health Board did not necessarily accept the validity of the LPA, following the LPA being sent by counsel the nurse confirmed it was valid. As regards treatment, counsel was informed there had been a misunderstanding and treatment to RW had never been stopped. Counsel asked the nurse to contact Ms Evans.[23]According to the Health Board, Dr Y, Consultant Physician and Cardiologist, reviewed RW after Ms Evans had visited RW on 13 January 2026. He documented that RW appeared comfortable and not distressed, his eyes were open spontaneously, his chest was clear and there was urine in his catheter. He recommended further bloods were taken, RW have a speech and language therapy assessment and subcutaneous fluids and anti-epileptics be continued with a view to determining whether artificial feeding was required.[24]On the evening of 13 January 2026 Ms Evans stated she had a conversation with Dr Y, who informed Ms Evans he had been asked to give a second opinion. Dr Y stated he had placed RW on fluids, ordered that bloods be taken and ceased certain palliative treatment, with a plan to review RW’s condition in the morning. Ms Evans states as a result of this conversation she did not proceed with an out of hours application on 13 January 2026.[25]The Health Board state that on 14 January 2026 Dr Y discussed RW with Dr X.[26]On 14 January 2026 Ms Evans was informed the Director of Medicine was seeking to speak to her. Following that discussion, Ms Evans commenced these proceedings. Directions were made by HHJ Hilder on 15 January 2026 following hearing from Ms Evans as it had not been possible to give the Health Board effective notice of the proceedings.[27]The Health Board state that on 16 January 2026 Dr W, Consultant Geriatrician, Head of Medicine, provided a second opinion. Dr W concluded there was no evidence of acute illness and that RW was probably going towards the end of his life. He noted that NICE guidance does not support NG/PEG insertion in the absence of acute illness in dementia. He conducted a formal capacity assessment confirming RW lacks capacity due to known dementia and an inability to understand the relevant information, retain it, use or weigh it or communicate any decision.[28]On the evening of 16 January 2026 Ms Evans received a call from Dr W, who, according to Ms Evans, apologised to her for the hospital’s conduct regarding the DNACPR which had not previously been discussed with her and confirmed he could see there had been no consultation with the LPA. Dr W advised that RW was medically fit and medically stable but coughing up secretions and in receipt of intravenous antibiotics. The DNACPR form was rewritten with the plan to manage any acute illness pending the hearing on 19 January 2026.[29]Following oral submissions on 19 January 2026 I directed the Health Board to file further evidence by 21 January 2026. The evidence would follow a multi-disciplinary meeting that could take place later that day, or the following day, to discuss RW’s medical and care arrangements, discharge from hospital and involve Ms Evans. The written evidence was directed to provide a summary of the MDT meeting, an update on RW’s presentation, a discharge plan for RW, a narrative summary of the reason why Ms Evans as holder of the LPA not being contacted until 12 January 2026 by the Health Board, any steps take to investigate that issue and prevent any reoccurrence, and what attempts were made on the ward to orally feed RW from 6 January 2026 onwards, together with any guidance given to ward staff about how to support RW to eat. The matter was listed for a further hearing on 22 January 2026.[30]The MDT meeting took place on 19 January 2026. In Ms Kelly’s position statement for the hearing on 22 January 2026 she notes that Ms Evans visited RW after that meeting and noted his condition had deteriorated since she last saw him on 13 January 2026. Ms Evans reported that RW was more alert the following morning and able to take some small amounts of thickened fluid and food.[31]On 21 January 2026 the Official Solicitor wrote to the court stating that she had not been provided with an order authorising her to investigate RW’s finances in order to establish how the costs of his legal representation are to be met.[32]The Health Board filed three further statements in advance of the hearing on 22 January 2026.[33]First, from AB, Senior Nurse for Court of Protection that stated ‘Following proceedings the Health Board intend to highlight a central point of contact and establish a process, to ensure that the delays experienced initially are not repeated’ and that the ‘Health plan to complete a Root Cause Analysis (RCA) to identify learning and areas of practice that can be improved. The findings from the RCA will be utilised to promote focussed learning and service improvement, ensuring adherence with legislation and Health Board policy’.[34]Second, from CD, Senior Nurse in Speciality Medicine, which outlines the attempts made to orally feed RW from 6 January 2026.[35]Thirdly, from Dr Y, Medical Director for Unscheduled Care, which details the MDT meeting. That statement states the conclusion of the MDT meeting was that ‘RW has reached a new baseline in his advanced dementia which is deemed irreversible.a. There is no evidence of active reversible, treatable illness.b. Feeding should only be attempted when fully alert and able to engage (as per SALT guidance).c. Artificial enteral feeding (via NG or PEG) is not clinically indicated in advanced dementia in the absence of acute illness as outlined by NICE guidelines NG97.d. The [care home] would need defined feeding instructions and recommendations regarding ceiling of care and what to do if RW is unable to be fed’.[36]In his statement Dr Y stated ‘RW has an Advance Planning note from [the care home] which documents that his communication skills have deteriorated due to his diagnosis of dementia. When he was previously able to communicate his wishes, he expressed that he does not wish to be resuscitated, desires to remain in [the care home], wishes to be free from pain, and would like to pass away peacefully with dignity and respect’. Ms Evans expressed concern about reliance on this document which she had not seen before. It is dated June 2025 at which time Ms Evans reports RW was not able to write of express thoughts of this complexity. According to Ms Evans the care home subsequently confirmed that it had prepared this document as part of an annual review. Notably, Ms Kelly submitted on behalf of Ms Evans, that the final sentence of this part of the document had not been included in Dr Y’s statement. It states ‘We will contact [RW’s] solicitor regarding any advanced decisions related to his planning’.[37]At the hearing on 22 January 2026 the parties were able to agree the following set out in the order I made that day:
‘AND UPON the parties agreeing that upon discharge to M Care Home, the initial plan is that RW would not be returned to hospital save in circumstances where RW has a fall, breaks a bone or is otherwise in pain which cannot be managed by the care home, but not in the event of aspiration or a chest infection. The LPA will review this plan within 1-2 weeks after RW’s return to M Care Home based upon his presentation. AND UPON the parties agreeing that a palliative care plan will be prepared for RW, with input from the M Care Home and ME.’
[38]The order declared that RW lacked capacity to make decision as to his residence and care and that it is lawful and in RW’s best interests to be discharged to the care home on the following day.[39]The order directed that the Health Board should provide RW’s records from his admission to hospital to date and for those records to be disclosed to the Care Inspectorate Wales, the General Medical Council, the Nursing and Midwifery Council, and the Health and Care Professions Council for the purposes of considering any referral relating to RW’s care in hospital.[40]Finally, the order directed written submissions on the issue of costs and/or further declarations.

Submissions on behalf of Ms Evans

[41]On behalf of Ms Evans, Ms Kelly stresses that Ms Evans’s concerns in this case go beyond the acknowledgement of the Heath Board about the lack of communication with her. Ms Kelly submits the failure goes wider than that in failing to consult with people interested in RW’s welfare, as required by s4(7) Mental Capacity Act 2005 (MCA 2005). The consequences of this, she submits, is that the hospital had very little information from people who knew RW when making decisions about him. She submits ‘Where RW is a frail man with limited communication who is not able to advocate for himself, it is imperative that decisions taken in his best interests are taken in consultation with people who actually know him, and in this case, by the attorney who RW chose to place in charge of his welfare when he had capacity.’[42]Ms Kelly recognises that the court may consider that issues of lawfulness of RW’s care and treatment may now be issues for the Coroner rather than the Court of Protection. In her written submissions she states ‘It is understood that the coroner has requested a post-mortem examination and intends to convene an inquest in respect of RW’s death’.[43]Ms Kelly submits the evidence of the attempts to support RW take fluid and/or food are somewhat generalised. CD records in her statement ‘Records confirm that from 6/1/26 – current date RW’s ability to engage in any oral intake has been recorded on the All Wales Food Record. The nursing staff have assessed RW ability to safely consume any oral diet and fluids daily and the record shows the majority of the time RW has remained too drowsy or not alert enough to engage in an oral diet.On 10.01.26 nursing staff assessed RW and felt at this time he was alert enough to trail a meal, however RW was not engaging and was clamping down his mouth when the nursing staff attempted to feed him’. Ms Kelly submits it is unclear from the evidence whether any attempts were made after that until 19 January 2026 when it was said ‘nursing staff attempted to trail a puree mela with RW and commenced with oral care first, however RW would not engage and kept closing his mouth’. On 20 January 2026 attempts were made, RW did eat although coughed afterwards. A SALT recommendation was obtained, which recommended thicker fluids and food. RW ate again on 21 January 2026. Ms Kelly submits Ms Evans instructs her that when Ms Evans was present on the ward on 13 January 2026 some staff believed RW was nil by mouth and the written evidence does not make clear whether any attempts were made to feed to feed him or nurses recorded that he was drowsy. Ms Kelly submits that the evidence does not provide a clear picture of attempts to feed RW after the decision on 8 January 2026 to ‘transition to comfort care’ and, as a result, submits that RW’s condition at the time of the hearing on 22 January 2026 may not represent his baseline condition if RW is suffering from malnutrition. Ms Kelly also submits that there is a risk that attempts to feed RW whilst he was on a busy hospital ward rather than at the care home are not indicative of his ability to eat as it is unlikely the hospital staff would have either the time or the familiarity the care home had to encourage RW to eat.[44]Following the hearing on 22 January 2026 RW’s hospital records were disclosed. Ms Kelly provides an analysis of those in her written submissions regarding the lead up to place RW on an end of life pathway and events after that, and what she submits are the inconsistencies in those records. She submits from the disclosure of those records there is an issue as to whether the conclusions regarding RW’s ‘baseline’ was based on an incomplete of RW that the MCA 2005 required the hospital to have.[45]Turning to Dr Y’s statement he confirms that on 8 January 2026 ‘RW was maintained on comfort care measures with regular oral care, repositioning, and pressure area care’. Ms Kelly submits that decision was made in clear breach of s4(7) MCA 2005, as was the earlier decision on 6 January 2026 where the hospital inserted an NG tube for the purpose of giving artificial nutrition, removed the NG tube without any plan to give RW nutrition orally, again undertaken without consultation with Ms Evans holding the LPA. This was at a time when the hospital knew of the LPA and did not make any application to the court.[46]Ms Kelly submits the consequences of this decision is that RW remained in hospital for a further two weeks without nutrition. As she submits ‘RW had only been in hospital for approximately two weeks at the time the decision was taken, and had entered in a state in which he was acutely unwell…Hospital staff had little to no understanding of what his true ‘baseline’ was, and did not actually consult with people who had known him for years to find out. It is thus entirely unclear how they reached the conclusion that he was at his ‘baseline’, or that his ‘baseline’ involved total refusal of food’. Ms Kelly continues ‘Has the hospital actually discussed this matter with the LPA and/or [the care home] together information about RW’s presentation, it could have been confirmed that RW requires a slow, patient approach with food’ and that the best thing for RW on 8 January 2026 could have been to return him to the calmer and more familiar environment of the care home. As Ms Kelly submits consultation under s4(7) MCA 2005 is not ‘merely about informing others about a decision that has already been taken on behalf of P – it is an entirely necessary step to ensure a decision-maker has gathered relevant information about P’.[47]Ms Kelly submits the reference in Dr Y’s statement to what he described as RW’s advance planning note and the information now provided by Ms Evans illustrates the serious consequences of the failure of the hospital to fulfil the requirements of s4(7) MCA 2005.[48]In relation to costs Ms Kelly submits the Health Board should pay them on an indemnity basis as its conduct has been highly unreasonable and unlawful (see Suez Fortune Investments Ltd & Another v Talbot Underwriting Ltd and Others [2019] EWHC 3300 (Comm) at [7] – [8]). She submits that when Ms Kelly sought to try and address her concerns about RW’s care she was met with significant resistance and baseless suspicion regarding the LPA. Ms Kelly submits Ms Evans tried to speak with the hospital on 12 and 13 January 2026 with the hospital effectively refusing to revert to active treatment and questioning the validity of the LPA. The application was made on the afternoon of 14 January 2026 as Ms Evans was unable to secure any assurance from the hospital that RW would be restored to active treatment, the urgent out of hours application was only not pursued when confirmation was provided that RW would be restored to active treatment. The inability to be able to alert the hospital to the hearing on 15 January 2025 was due to a lack of an effective means to contact the relevant person in the hospital.[49]Ms Kelly notes the increase in reviews of RW’s care by other doctors post-dated Ms Evan’s attempts to raise issues regarding RW’s care. The decision to return to active treatment was taken simultaneously with the hospital being requested to confirm details of a representative to be available to attend an urgent hearing. Ms Kelly submits no real attempt to progress any plans for RW’s discharge took place until the hearing on 19 January 2026. Ms Kelly submits ‘the existence of these proceedings led to substantial changes in the course of RW’s care, and were entirely necessary to restore his appropriate treatment.’

Submissions on behalf of the Health Board

[50]On behalf of the Health Board Mr Jones does not oppose the making of a declaration of unlawfulness on the basis that there has been a failure to comply with the Mental Capacity Act 2005, subject to the court concluding that it has jurisdiction to make one. The Health Board acknowledges that there were failures in communication with Ms Evans, apologises for them and considers it appropriate that they are recorded in the final order. Mr Jones acknowledges there were systemic failings on behalf of the Health Board, which are being addressed, he submits the clinicians on the ground working with RW were all trying to do their best in challenging circumstances.[51]In relation to costs Mr Jones submits such an order should not be made. The general rules in the Court of Protection is that there will be no order as to costs (rule 19.3 Court of Protection Rules 2017 ‘COPR 2017’). Mr Jones submits the order sought by Ms Evans in her application was supported by the Health Board and the proceedings concluded with an agreed position, namely for RW to be discharged back to the care home. He submits this was not a finely balanced case, there was no difference of medical opinion and no lack of agreement or potential conflict of interest (see paragraph 8 medical treatment guidance [2020] EWCOP 2).[52]As regards the Health Board’s conduct he submits the Health Board has apologised and set out the steps being taken to address what it accepts were the systemic failings.[53]As regards the broader circumstances Mr Jones submits Ms Evans was reported to have been recording calls with the hospital, was aggressive in the way she dealt with hospital staff and the hospital had some information regarding RW’s wishes and feelings and were in contact with the care home. He submits following 12 January there was extensive communication between the hospital with Ms Evans although he submits ‘The Health Board was left with a view that [Ms Evans] was simply unwilling to properly engage in a discussion around best interests. The Health Board is of the view that had these discussions been more engaged, an application to the Court of Protection would have been avoided’.

Discussion and decision

[54]I recognise that even though the Official Solicitor was invited to act as RW’s litigation friend on 15 January 2026 no order has been made enabling the Official Solicitor to investigate RW’s finances. Due to the urgency of the situation for RW, the unconventional way these proceedings were commenced (with the Health Board as respondent and then becoming applicant) no party sought to delay the proceedings any further. In the particular circumstances of this case I agreed with that approach as RW’s position was sufficiently covered by Ms Evans.[55]There is a measure of agreement between the parties, that providing the court is satisfied it has jurisdiction, that a declaration can be made under s15 MCA 2005 that the Health Board had failed to comply with the MCA 2005, in particular section 4 (6) and (7).[56]Section 4 MCA 2005 provides in relation to best interests as follows: (1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a)the person's age or appearance, or (b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3)He must consider— (a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b)if it appears likely that he will, when that is likely to be. (4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6)He must consider, so far as is reasonably ascertainable— (a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b)the beliefs and values that would be likely to influence his decision if he had capacity, and (c)the other factors that he would be likely to consider if he were able to do so. (7)He must take into account, if it is practicable and appropriate to consult them, the views of— (a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b)anyone engaged in caring for the person or interested in his welfare, (c)any donee of a lasting power of attorney granted by the person, and (d)any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).[57]On the information I have seen it is accepted by the Health Board that up until 13 January 2026 they had not made contact with Ms Evans, who they knew was the LPA for RW. According to Ms Evans, they had that information at the time of RW’s earlier hospital admission in December. The Health Board accept they had it at the time of RW’s admission on 24 December 2025 and record that on 29 December 2025. They did not contact Ms Evans until she went into the hospital on 13 January 2026.[58]Section 4 (7) MCA 2005 is clear in its terms that in making any decision about what is in RW’s best interests the Health Board was under a duty to contact Ms Evans as the LPA both in relation to s4(7) and also in relation to s4(6). The evidence is less clear about the contact between the hospital and the care home. It appears there was some contact, the hospital placed reliance on the document completed by the care home. Whether they were right to place the reliance on it that they state they did in their statements may require further consideration.[59]In the light of the consensus that the Health Board acknowledges that it acted unlawfully on the basis that there had been a failure to comply with the MCA 2005 and this can be recorded in the order I do not consider it is necessary for me to decide whether I can make a declaration to that effect under section 15 MCA 2005 following the death of RW.[60]I have reached that conclusion for the following reasons: 1. I have not heard full argument on the issue of jurisdiction following RW’s death. 2. There has been extensive disclosure of the hospital records since 22 January 2026 which I have not seen. 3. The circumstances leading up to RW’s death are being considered and investigated by the Coroner.[61]Turning to the issue of costs. It is correct that the general rule in the Court of Protection is for there to be no order as to costs. The Court of Protection Rules 2017 provide as follows:
"Personal welfare – the general rule 19.3. Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P's personal welfare… Departing from the general rule 19.5.— (1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including— (a) the conduct of the parties; (b) whether a party has succeeded on part of that party's case, even if not wholly successful; and (c) the role of any public body involved in the proceedings. (2) The conduct of the parties includes— (a) conduct before, as well as during, the proceedings; (b) whether it was reasonable for a party to raise, pursue or contest a particular matter; (c) the manner in which a party has made or responded to an application or a particular issue; (d) whether a party who has succeeded in that party's application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and (e) any failure by a party to comply with a rule, practice direction or court order. (3) Without prejudice to rules 19.2 to 19.4 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction." "
Procedure for assessing costs 19.10. Where the court orders a party, or P, to pay costs to another party it may either— (a) make a summary assessment of the costs; or (b) order a detailed assessment of the costs by a costs officer; unless any rule, practice direction or other enactment provides otherwise."[62]Ms Kelly submits the prospect of and the actual issue of proceedings were the events that resulted in a significantly greater medical oversight of RW’s care. Prior to that there had been no active engagement with Ms Evans as the MCA 2005 requires regarding decisions relating to RW’s care. Prior to the issue of proceedings there had been no serious attempt to progress any plans for RW’s discharge to the care home until the date of the first hearing on 19 January 2026. She submits the existence of the proceedings led to substantial changes in the course of RW’s care, they were necessary to restore the appropriate level of treatment, for there to be effective consultation and decisions reached that accorded with the provisions of the MCA 2005.[63]Mr Jones resists the application for costs on the basis that the Health Board supported what was being sought by the application and makes observations about the way Ms Evans communicated with the Health Board.[64]Having considered the submissions and the information available to the court whilst I acknowledge the parties were able to reach agreement on 22 January 2026, I am satisfied that it required the issue of these proceedings for that to happen. I agree with Ms Kelly that it was the existence of these proceedings that led to the changes in RW’s care and treatment in circumstances where the Health Board had failed to consult with Ms Evans as the MCA 2005 required them to do. The Health Board have accepted responsibility for those failures but that acceptance, in reality, only came after Ms Evans had issued the application. The Health Board rightly accept they need to make real changes following what took place in this case to ensure these circumstances do not arise again. Whilst I consider the Health Board’s conduct was unreasonable I do not consider in the light of their early acceptance of responsibility it reached the degree to justify an order for indemnity costs.[65]I am satisfied that in the particular circumstances of this case the court can and should depart from the general rule and the Health Board should pay Ms Evans costs of this application to be agreed, or in the absence of agreement are subject to a detailed assessment.

Cited in 1 later judgment