Court of Protection: Peel J confirms the interaction between s.63 Mental Health Act 1983 and s.28 Mental Capacity Act 2005’

P v C Healthcare Ltd & Ors [2026] EWCOP 29 (T3). P is a woman with diagnosed anorexia nervosa, autism and pathological demand avoidance, and with a history of life-threatening illness and extensive treatment. At the time of the judgment, she was detained for treatment under s.3 Mental Health Act 1983 (MHA).

In July 2026, her clinicians assessed her treatment regime so that all nutrition was provided by nasogastric tube (NGT), accompanied by restraint and sedation when necessary. P, on her evidence, strongly opposed this change.

P made an application to the Court of Protection seeking declarations that:

1. P had capacity to decide whether to accept forcible feeding.
2. Forced feeding was not in her best interests and breached Article 3 ECHR.
3. Her treating centre had breached her rights by refusing to obtain an independent second opinion.

This came before Peel J to consider whether the Court of Protection had jurisdiction/power to determine those matters.  The central question was whether the Court of Protection can make Best-Interests decisions about treatment for a mental disorder when the patient is detained under the MHA and the treatment is being given under Part IV of that Act (specifically s.63 MHA).

Section 63 of the MHA states that the consent of a patient is not required for any medical treatment given for the mental disorder from which they are suffering, provided the treatment is administered by or under the direction of the approved clinician in charge of the treatment.

The Court needed to consider the interaction between:

• s.63 MHA 1983 – allowing treatment for mental disorder without the patient's consent; and
• s.28 Mental Capacity Act 2005 (MCA) – excluding certain decisions from the MCA regime.

Capacity

The Court found that there was at least a sufficient basis under s.48 MCA to conclude that P likely lacked:

• capacity to conduct litigation; and
• capacity to make decisions about feeding treatment.

Therefore, she potentially fell within the scope of the MCA and Court of Protection jurisdiction generally.

However, that did not determine whether the Court of Protection could intervene in treatment being provided under the MHA.

Decision

Peel J held that s.28 MCA excludes the Court of Protection from making Best-Interests decisions regarding treatment for mental disorder that is regulated by Part IV of the MHA.

Since NGT feeding for P's anorexia constituted treatment for a mental disorder under s.63 and s.145(4) MHA, decisions about that treatment belonged to the responsible clinician, not the Court of Protection.

The Court of Protection had no power to grant the orders sought.  The application was therefore dismissed.

Key reasoning

1. NGT feeding was treatment for mental disorder

The Court accepted that treatment for anorexia, including NGT feeding, falls within s.63 MHA because it addresses a symptom or manifestation of the mental disorder

2. Treatment and non-treatment are "two sides of the same coin"

P argued that she was not asking the Court to authorise treatment, but rather to declare that forced feeding was not in her Best Interests.

The Judge rejected this distinction. A declaration requiring clinicians to stop a treatment plan would effectively interfere with and control treatment decisions under the MHA.

3. Parliament created separate statutory schemes

The MHA places responsibility for compulsory psychiatric treatment on clinicians.

The MCA gives the Court of Protection broad best-interests powers, but s.28 MCA expressly removes treatment decisions governed by Part IV MHA from that regime.

The Judge considered that allowing the Court of Protection to override clinical decisions under s.63 would undermine the structure of the MHA.

4. Excluded decisions are not subject to a best-interests analysis

Although Best Interests is a broad concept under the MCA, Parliament expressly limited that jurisdiction through the "excluded decisions" provisions in ss.27–28 MCA.

5. Existing authority supported this interpretation

Peel J relied in part on recent comments by Theis J in Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v QF [2026] EWHC 1621 (Fam), where it was stated that s.28 MCA prevents such treatment decisions being brought in the Court of Protection.

Important practical guidance

The judgment contains significant procedural observations. Where treatment clearly falls within s.63 MHA

• The Court of Protection should not be asked to make Best-Interests decisions about it.
• The clinicians' decision-making authority prevails.

Analysis 

This is an important authority on the boundary between the MCA and the MHA, and offers clinicians some degree of certainty when treating detained patients.

Peel J held that where an incapable patient is detained under the MHA and receiving treatment for a mental disorder under s.63 MHA, the Court of Protection cannot use its Best-Interests jurisdiction to approve, prohibit, or alter that treatment. The decision rests with the responsible clinician, subject to public law and human rights challenges rather than Court of Protection oversight.  As ever, those decisions will need to be carefully reached and documented.  However, the question whether the public law remedies are an effective and accessible route of challenge in these circumstances, remains a matter of some debate.

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