Health board acknowledges it acted unlawfully in failing to comply with Mental Capacity Act 2005

In Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3) (12 February 2026), Mrs Justice Theis considered the care and treatment of RW, who lacked capacity and was admitted to hospital in December 2025 following a seizure.

RW, who had advanced mixed dementia, diabetes, hypertension, seizures and a significant traumatic brain injury, was wholly dependent on his care home for his personal care needs. He had no family members.

RW’s solicitor, Ms Evans, was his health and welfare and property and affairs lasting power of attorney (LPA).

During RW’s admission, the hospital tried nasogastric (NG) tube feeding due to multiple episodes of hypoglycaemia. Following RW pulling at his cannula, the hospital concluded it would “not be safe to continue”.

The focus shifted to “comfort care”, with anticipatory end-of-life medications prescribed for use if required.

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'.

HHJ Hilder 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 Mrs Justice Theis (the judge) on 19 January 2026.

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.

The judge noted: “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.”

RW passed away on 27 January 2026.

Ms Evans sought two matters in her written submissions:

1. 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.
2. For the Health Board to pay her costs of the application on an indemnity basis.

On the first matter, the judge said: “[Ms Evans] 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.”

The Health Board did not oppose the making of a declaration of unlawfulness on the basis that there had been a failure to comply with the Mental Capacity Act 2005 MCA 2005).

The judge said: “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 (for the Health Board) 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.”

However, the Health Board resisted the application for costs on the grounds that “the threshold for departing from the usual costs rule has not been crossed”.

Considering the case, the judge said: “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.

“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.”

She continued: “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.

“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.”

Finally, turning to costs, the court noted that the general rule in personal welfare cases under the Court of Protection Rules 2017 is that there will be no order as to costs. However, the court may depart from that rule where circumstances justify it, including having regard to the conduct of the parties.

The judge said: “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 [on behalf of Ms Evans] 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.

“[…] 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.

“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.”

Lottie Winson