Capacity and welfare under Section 21A

The Court of Protection has handed down its decision in LM v NHS Sussex ICB [2025] EWCOP 50 (T2) providing clarity on how capacity should be assessed in section 21A proceedings—and when courts can move beyond a narrow review of Deprivation of Liberty (DoLS) authorisations to make wider welfare declarations. His Honour Judge Khan confirmed that evidence prepared for section 21A can properly support section 15 determinations, improving efficiency and fairness in contested cases.

The facts

LM, a young man who sustained a significant brain injury in 2013, was living in an acquired brain injury unit under a standard DoLS authorisation. His Accredited Legal Representative (ALR) challenged the authorisation under section 21A. The court was asked to determine two key questions:

1. Does LM have capacity to conduct legal proceedings regarding his care?
2. Does LM have capacity to decide where he should live?

Litigation capacity

Although LM could communicate, the court concluded he lacked the ability to understand and weigh the information necessary to conduct proceedings. Applying the Masterman Lister test, the judgment emphasised that litigation capacity is closely linked to the substance of the proceedings. Where a person lacks capacity on a core issue (here, it was already agreed between the parties that LM lacked capacity regarding his care), litigation capacity is unlikely to exist.

Residence capacity

LM’s need for 24-hour support, and his inability to appreciate and weigh that need, meant he could not make a meaningful decision about where to live.  The court found care and residence were “so closely connected that they cannot realistically be separated.” His Honour Judge Khan therefore declared LM as lacking capacity to decide residence, distinguishing from cases such as London Borough of Tower Hamlets v A & Anor [2020] EWCOP 21, where care needs did not limit viable residence options.

Court can make wider declarations within section 21A

Importantly, the Court of Protection confirmed that section 21A proceedings are not confined to reviewing DoLs authorisations. Where appropriate, the court can make wider capacity and welfare declarations under section 15 during the same proceedings. This avoids duplication, reduces delay, and allows contested cases to progress more efficiently. 

Practical takeaways 

• Assess holistically: where care and residence are interdependent, consider them together rather than in isolation. 
• Litigation capacity is rarely divorced from subject-matter capacity: if P lacks capacity on a key issue, expect the court to find litigation capacity is absent.
• Use evidence efficiently: reports prepared for section 21A challenges can (and should) inform s.15 determinations. 
• Plan for proportionate proceedings: wider capacity questions can often be resolved within section 21A proceedings, helping avoid fragmented litigation. 

Why this matters

This decision provides practical clarity for section 21A cases: courts may resolve capacity questions and make section 15 declarations within the same proceedings, and practitioners should expect a holistic approach where care and residence are functionally linked. This helps to prevent fragmented litigation and reduces delay and cost.

Our content explained