The most revealing way to understand the Court of Protection in 2026 is not through a checklist of what the court can decide. It is through the cases now reaching judges. From disputes about care and contact to life-sustaining treatment, direct payments and the meaning of deprivation of liberty, recent judgments show how intensely personal these cases can become when families, professionals and public bodies disagree about what should happen to someone who cannot make a particular decision for themselves.
The volume of work is significant. Ministry of Justice figures show that 11,351 applications were made under the Mental Capacity Act 2005 between January and March 2026, an 18% increase on the same quarter of 2025. There were also 14,604 orders made under the Act during the quarter, while 2,264 applications related specifically to deprivation of liberty. These figures do not mean every application involves a dramatic family dispute, but they demonstrate the scale of decision-making taking place around people who may lack capacity.
2026 has changed the legal landscape around deprivation of liberty
One of the most important developments this year came from the Supreme Court on 2 June 2026. Its judgment changed the approach to determining whether a person is being deprived of their liberty, moving away from the familiar “acid test” established by Cheshire West in 2014.
Under the new approach, there is no single decisive test based simply on continuous supervision and whether someone is free to leave. Instead, the assessment is multifactorial. It looks at the type, duration, effects and manner of restrictions, alongside the individual’s circumstances, wishes and feelings, the purpose of the arrangements and other relevant factors. The government has confirmed that the change applies immediately and has implications across the UK, although the practical safeguarding frameworks differ between jurisdictions.
That matters because restrictions that might once have been treated as automatically amounting to a deprivation of liberty now require a more individual assessment. Equally, the judgment does not simply make restrictions less important. Where there is significant doubt about whether someone has validly consented, or where Article 5 rights may be engaged, safeguarding and court processes remain relevant.
For families, this creates a particularly important distinction between lack of mental capacity and deprivation of liberty. A person may lack capacity to make a particular decision about their care while their wishes and feelings remain highly relevant to determining whether the arrangements amount to a deprivation of liberty. The new framework therefore puts greater emphasis on understanding the individual rather than applying the same conclusion to everyone receiving restrictive care.
The first major post-Supreme Court cases are already testing the new approach
The practical importance of the Supreme Court’s decision can be seen in Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45, handed down on 4 September.
AR was a 25-year-old man with moderate to severe learning disability and autism who had lived with his parents for most of his life. The case concerned whether the restrictions surrounding his care and living arrangements amounted to a deprivation of liberty under the new legal framework. The judgment is therefore particularly significant because it provides an early example of the Court of Protection applying the changed approach to an individual case rather than discussing the Supreme Court decision only in abstract terms.
The case also illustrates why Court of Protection disputes cannot always be reduced to disagreements about whether someone is “allowed out” of a home or care setting. The court has to examine the actual circumstances, including the nature and impact of restrictions and the person’s own experience of them. That makes evidence from family members, carers, healthcare professionals and other people who understand the individual’s communication and behaviour potentially important when capacity and liberty are contested.
The timing is notable. The National Archives’ Court of Protection database shows that Re AR was one of several significant judgments handed down in August and September 2026, including NHS North East London ICB v FHR & Ors and Re Various Applications in respect of ‘Direct Payments’. The emerging case law will be important for understanding how the new Supreme Court principles operate beyond the wording of the judgment itself.
Best interests remain central when families disagree
A recurring feature of Court of Protection litigation is that the dispute is rarely simply about whether a person has capacity. The more difficult question is often what should happen if the person does not have capacity to make the particular decision.
The Mental Capacity Act requires decision-makers to consider the person’s best interests, but that does not mean choosing whichever option appears safest or most convenient. The person’s wishes and feelings, beliefs and values, and the views of people involved in their care can all be relevant. In a contested case, the court may have to weigh medical evidence against evidence from relatives who have known the person for many years.
This is particularly apparent in cases involving serious medical treatment. Questions about whether treatment should continue, whether clinically assisted nutrition and hydration should be provided, or whether a particular medical intervention is in a person’s best interests can place families and healthcare organisations on opposite sides of a dispute.
Recent Court of Protection judgments listed by the National Archives include NHS North East London ICB v FHR & Ors, handed down on 26 August 2026. Its inclusion among the court’s recent Tier 3 judgments illustrates the continuing importance of best-interests decisions involving medical care.
Family relationships can become part of the legal dispute
Care arrangements are another area where disagreements can become particularly difficult. A family member may believe that a parent, sibling or adult child should return home, while professionals consider residential or supported accommodation necessary. Another dispute may concern whether contact with a particular relative should be supervised, reduced or stopped.
These cases demonstrate why the Court of Protection is not simply a financial court. Its jurisdiction extends to welfare decisions including where someone lives, what care they receive and, in appropriate circumstances, contact with other people.
A dispute about contact can be especially sensitive because the court must consider both the person’s welfare and the evidence surrounding the relationship. The question is not necessarily whether a particular family member is a “good” or “bad” influence. Instead, the court must determine what decision is lawful and in the person’s best interests on the evidence before it.
The recent case list includes SB v PB: Appeal: Best interests: Restrictions on contact in a care home, handed down in May 2026, demonstrating how contact restrictions continue to generate contested Court of Protection litigation.
Mental capacity is decision-specific, not a blanket label
Another important point emerging from Court of Protection work is that “lacking capacity” should not be treated as a permanent description of a person or an answer to every decision they face.
The Mental Capacity Act operates on the basis that capacity is assessed in relation to a particular decision and at the time the decision needs to be made. Someone may therefore be able to make some decisions independently while requiring support or a best-interests decision for others.
That distinction becomes important in disputes about accommodation, medical treatment, relationships and financial affairs. It can also affect how evidence is gathered. A capacity assessment should address the actual decision involved rather than simply assuming that a diagnosis, disability, brain injury or period of illness determines the outcome.
This is one reason specialist legal advice can become useful when a family is challenging a capacity assessment or disagreeing about what should happen next. A solicitor dealing regularly with mental capacity cases will usually need to understand not only the legal test but also the medical, social-care and factual evidence surrounding the decision.
The Court of Protection is also dealing with financial decisions
Not every 2026 Court of Protection case is about care or medical treatment. The court also has an important role where a person lacks capacity to manage property and financial affairs.
The National Archives records Re Various Applications in respect of ‘Direct Payments’ [2026] EWCOP 42, handed down on 10 September 2026, among the court’s most recent judgments. The case is a useful reminder that mental capacity disputes can extend into the practical management of a person’s money and entitlement to support.
For families, financial questions can be particularly difficult where there is no valid Lasting Power of Attorney and someone needs authority to manage another person’s affairs. The Court of Protection may become involved in appointing a deputy or determining contested financial decisions, while professional deputies can also be appointed where appropriate.
This is one area where the work of different Court of Protection practices can vary considerably. Some firms have a strong emphasis on property and financial affairs, while others focus heavily on health and welfare disputes, and some maintain broader practices covering both.
Specialist solicitors reflect the breadth of Court of Protection work
The legal market itself reflects these different strands. Welford Solicitors, for example, has a dedicated Court of Protection practice with a stated focus on health and welfare matters, including disputes concerning care arrangements, medical treatment, deprivation of liberty and contact.
Other firms operate on a broader or more nationally distributed basis. Irwin Mitchell describes its mental capacity practice as covering welfare and financial matters, including disputes over accommodation, care, contact, serious medical treatment and deputyship. Hugh James likewise operates a specialist Court of Protection practice across England and Wales, with teams in Cardiff, London and Manchester, and covers matters including financial affairs, deputyship and disputes involving capacity.
For someone searching for mental capacity solicitors, the practical issue is therefore not simply finding a firm that uses the phrase “Court of Protection”. The relevant question is what type of dispute is involved. A welfare case concerning residence, contact or medical treatment may require a different kind of expertise from an application concerning property, investments or the conduct of a deputy.
The statistics suggest a system under sustained pressure
The latest figures provide useful context for these individual judgments. The 11,351 Mental Capacity Act applications recorded in the first quarter of 2026 represent an 18% increase year on year. At the same time, deprivation of liberty applications increased by 6%, reaching 2,264 during the quarter. Orders made under the Mental Capacity Act rose by 6% to 14,604, although deprivation of liberty orders fell by 12% compared with the same period in 2025.
Those figures should not be interpreted as evidence that every category of Court of Protection dispute is increasing in the same way. They do, however, show a substantial volume of applications at a time when the legal framework itself has undergone an important change.
The next set of quarterly statistics will be particularly interesting because it should provide a clearer indication of activity after the Supreme Court’s June judgment. The Ministry of Justice’s current data publication identifies 24 September 2026 as the next publication date for the family court statistics.
What 2026’s cases reveal about the Court of Protection
Taken together, the cases of 2026 show a Court of Protection dealing with questions that sit at the intersection of law, medicine, social care and family life. The most important developments are not confined to one type of dispute. They include a fundamental change to the approach to deprivation of liberty, continuing litigation about best interests and medical treatment, disputes over family contact and living arrangements, and financial cases involving the practical management of another person’s affairs.
For families, one message is particularly important: capacity is not the same as incapacity in every area of life, and a diagnosis does not by itself determine what should happen to someone. Court of Protection decisions are built around particular decisions, particular circumstances and evidence about the individual.
That is also why the role of specialist mental capacity solicitors can extend well beyond submitting an application. In a contested case, legal representatives may need to examine capacity evidence, challenge or support proposed care arrangements, scrutinise restrictions on liberty, present evidence about wishes and feelings, and ensure that the person’s rights remain central to the process.
As 2026 moves into its final months, the developing case law will show how judges apply the Supreme Court’s new approach in increasingly varied circumstances. The result is likely to be a period in which both families and professionals have to look more closely at the individual circumstances behind restrictions, rather than relying on familiar assumptions about what constitutes a deprivation of liberty or what a best-interests decision should look like.
Comments are closed.