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05 September 2025 / Sam Karim KC , Sophie Hurst
Issue: 8129 / Categories: Features , Court of Protection , Mental health , Expert Witness , Local authority
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Presumption of capacity

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Sam Karim KC & Sophie Hurst on why the Court of Protection has reaffirmed that capacity must be presumed unless clearly rebutted
  • The Court of Protection has reaffirmed that capacity must be presumed unless clearly rebutted, even when individuals refuse assessments or present with challenging behaviour. Strong views or uncooperative conduct do not equate to incapacity.
  • The court placed limited weight on expert evidence based solely on paper assessments.

On 22 May 2025, Mrs Justice Theis DBE, vice president of the Court of Protection, handed down her judgment in the case of Macpherson (by her litigation friend, the Official Solicitor) v Sunderland City Council [2025] EWCOP 18. In this unique case, the Court of Protection considered and defined the boundaries of retrospective assessments of an individual’s capacity to conduct legal proceedings, and provided guidance for cases in which an individual refuses to engage with an examination to consider capacity.

Facts

The background to this case is extensive and arose from long-running proceedings in the Court

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