Alex Ruck Keene , KC (Hon)
Alex Ruck Keene KC (Hon) is an experienced barrister, writer and educator. His practice is focused on mental capacity, mental health and healthcare law. He also writes extensively, editing and contributing to leading textbooks and (amongst many other publications) the 39 Essex Chambers Mental Capacity Law Report, the ‘bible’ for solicitors (and others) working in the area. He is the creator of the website Mental Capacity Law and Policy, providing resources and expert commentary on some of the most difficult mental capacity issues.
Alex complements his practice with a deep interest in research and education. He is a Visiting Professor at the Dickson Poon School of Law, King’s College London, a Visiting Professor at the Geller Institute of Ageing and Memory, University of West London, a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London and a Research Affiliate at the Essex Autonomy Project, University of Essex. In addition to his academic positions, he lectures widely on the Mental Capacity Act 2005 and the Mental Health Act 1983 and trains judges, social workers, doctors, nurses and other professionals who have cause to work with them.
Alex now spends much of his time on policy matters. He is currently a consultant on the Law Commission’s Disabled Children Social Care project, having previously been a consultant to their Mental Capacity and Deprivation of Liberty Project. Throughout 2018, he was the legal adviser to the Independent Review of the Mental Health Act 1983. He was a specialist adviser to the Joint Committee on Human Rights for their 2020 inquiry into the human rights implications of the Government’s response to COVID-19 and specialist adviser into their 2021-2022 inquiry into human rights in the care setting. He sits on the Court of Protection Rules Committee, and is also a member of the International Family Law Committee, with a specific brief to raise the profile of cross-border capacity issues. He also sits – uniquely – on both the Mental Health and Disability Committee of the Law Society of England and Wales and on the Mental Health and Disability Sub-Committee of the Law Society of Scotland.
In March 2022, Alex was made an honorary KC, reflecting his contributions to mental capacity and mental health law outside the court room.
Practice Area
Panel
- Contributing Author
Qualified Year
- 2002
Year Taken Silk
- 2022
Membership
- STEP
- CPBA
- ALBA
- MHLA
8 Contributions by Alex Ruck Keene
PRACTICE NOTES
Court of Protection deprivation of liberty procedures: s21A challenges and COPDOL11 authorisations outside Schedule A1 (England and Wales)
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases:
applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute
applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 (MCA 2005)
Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty...
Private Client
PRACTICE NOTES
Court of Protection personal welfare and healthcare: powers, applications, case management, section 49 reports, hearings and costs (England and Wales)
The powers of the Court of Protection
The Court of Protection is empowered to make one or more decisions about the personal welfare of a person who lacks capacity (P) to make those decisions themselves. It can also appoint a deputy to take such decisions (see Practice Note: Choosing the deputy for further details), though health and welfare deputies are relatively seldom appointed, for the reasons articulated by Hayden J, then Vice-President of the Court of Protection, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For commentary on that ruling, see Case Analysis: Principles governing the appointment of personal welfare deputies (Re Lawson; Re Mottram; Re Hopton). A recent application of the Lawson principles led to the appointment of a personal welfare deputy—see Case Analysis: Court of Protection—when is the criteria for appointing a Personal Welfare Deputy met (Parr v Cheshire East Council & another). In another recent application by parents seeking a personal welfare deputyship for their adult child, the court reached a different view from Parr and declined to appoint the parents as deputies, finding this would be an unnecessary...
Private Client
PRACTICE NOTES
DoLS in England and Wales: Article 5 ECHR, Cheshire West acid test, authorisation procedures for hospitals and care homes, urgent applications, and LPS reform status
In HL v United Kingdom (the Bournewood case), the European Court of Human Rights determined that, where a person with a mental disorder is cared for or treated in circumstances amounting to a deprivation of liberty, a procedure prescribed by law must be observed. Consequent upon that decision, the Mental Health Act 2007 (MHA 2007) inserted a series of provisions into the Mental Capacity Act 2005 (MCA 2005), which took effect on 1 April 2009. Notably, Schedule 1A to the MCA 2005 created what are now termed the Deprivation of Liberty Safeguards, or the DOLS regime. The powers conferred by the MHA 2007 upon the Court of Protection, together with the DOLS regime, were implemented to ensure suitable legal safeguards for incapacitated persons who are, or might be, deprived of their liberty outside the scheme of the Mental Health Act 1983 (MeHA 1983). Statutory guidance concerning the DOLS regime has also been promulgated. That guidance ought to be treated with great caution, as in certain respects it has been overtaken by case law (most obviously concerning the meaning of a and, for that reason, the guidance should be treated with extreme caution as parts have been superseded by case law...
Private Client
PRACTICE NOTES
Human Rights in the Court of Protection: HRA/ECHR claims, best interests, deprivation of liberty, CRPD arguments, and remedies including damages (England and Wales)
The matters to be decided within the welfare remit of the Court of Protection are frequently highly intimate, and commonly entail either the court endorsing the use of state authority, or exercising that authority itself, over an individual—such as by imposing limits on contact between the protected person (P) and their relatives. It is therefore no surprise that human rights run through every facet of the court’s decision-making...
The Human Rights Act 1998 and the European Convention on Human Rights
The European Convention on Human Rights (ECHR) was brought into domestic law by the Human Rights Act 1998 (HRA 1998), which renders it unlawful for any public authority to act in a way that violates a person’s human rights. This binds all local authorities and National Health Service (NHS) bodies, as well as the courts themselves. The Court of Protection has jurisdiction to consider a claim under HRA 1998 that a public body has acted, or intends to act, incompatibly with the ECHR. The rights set out in the ECHR inform every part of the Court of Protection’s decision-making. They arise for consideration not...
Private Client
PRACTICE NOTES
Instructing Psychiatrists in Court of Protection Proceedings: necessity, permissions, joint instruction, letters of instruction, expert duties, and section 49 reports (England and Wales)
When is it necessary to instruct a psychiatrist?
Psychiatrists are often invited to evaluate the decision‑making capacity of protected persons (Ps) who are the subject of proceedings before the Court of Protection. They are, on occasion, asked as well to offer a view on P’s best interests. For further guidance on mental capacity, see Practice Notes: Mental capacity—an introduction and Mental capacity—assessments and tests. It should be clearly recognised from the outset that instructing a psychiatrist is not invariably required in order to assess capacity. Capacity evaluations may properly and safely be undertaken by a broad range of professionals, including psychologists, general practitioners (GPs), social workers, and speech and language therapists. In some matters, particularly where P’s capacity is borderline or fluctuating, instructing a psychiatrist to assess capacity can prevent significant delay and wholly unnecessary cost. This is especially true where the psychiatrist regularly undertakes capacity assessments and has particular expertise in the relevant sphere, for example working with older people or with people who have learning difficulties. A judge will almost always attach considerable weight to expert psychiatric evidence; however, it should also be remembered that, in some particular instances, evidence provided by other professionals who possess experience of...
Private Client
PRACTICE NOTES
Safeguarding adults in the Court of Protection: statutory framework, duties of enquiry, evidence standards and police liaison (England and Wales)
Safeguarding concerns often underpin or arise during welfare proceedings in the Court of Protection, and this Practice Note explains how such matters should be approached.
What is safeguarding?
In its widest sense, ‘safeguarding’ covers every facet of a person’s welfare. This understanding of safeguarding guides local authorities’ approach to providing adult services within their functions and commissioning responsibilities too.
In proceedings before the Court of Protection, however, ‘safeguarding’ is usually shorthand for what is more precisely described legally as ‘adult protection’ within practice. That term relates to inquiries and interventions by a public authority where there is concern that someone has been, is at present, or could in future be, the victim of abuse.
The statutory basis of safeguarding applications
Under the Care Act 2014 (CA 2014), local authorities in England have defined safeguarding duties. In Wales, comparable obligations arise under the Social Services and Well-being (Wales) Act 2014 too. It should also be recognised that safeguarding duties are not confined to local authorities: other organisations, notably National Health Service (NHS) bodies, bear responsibilities towards adults at risk and may conclude that those duties require them to commence proceedings in the Court of Protection when necessary. Whilst the changes set...
Private Client
PRACTICE NOTES
Serious Medical Treatment under the MCA 2005: when Court of Protection applications are required, best interests, life‑sustaining treatment, powers and case management (England and Wales)
Medical treatment of those without capacity to consent
As a general rule, it is a patient’s (P’s) consent that renders invasive medical intervention lawful. Where P cannot provide consent, treatment that is necessary and in P’s best interests may lawfully be given. Section 5 of the Mental Capacity Act 2005 (MCA 2005) supplies a general defence for acts undertaken in connection with a person’s care or treatment, provided the actor has first taken reasonable steps to assess whether the individual lacks capacity in relation to the decision and reasonably believes both that capacity is absent and that the act is in that person’s best interests. In 2018, the Supreme Court in NHS Trust v Y confirmed that, if the MCA 2005 is complied with, relevant professional guidance is observed and the Code of Practice guidance followed, including the conduct of the decision-making process, then, where there is agreement at the end of that process about (a) the person’s decision-making capacity and (b) their best interests, medical treatment may, in principle, be provided to, withdrawn...
Private Client
PRACTICE NOTES
Urgent and without-notice Court of Protection applications (England and Wales): welfare and property and affairs procedures, pre-issue requirements, out-of-hours process, disclosure duties and return hearings
Introduction
On occasion, it becomes necessary to make an urgent application to the Court of Protection in one of two scenarios:
when no proceedings are on foot, yet urgent relief from the court is required before the preliminary steps to issue can be completed; or
when proceedings are already underway and an unforeseen development means the court must be approached swiftly during those proceedings
In essence, the same principles apply in either scenario (and they apply equally whether the application concerns the person’s health and welfare or their property and affairs). Under Practice Direction 3B on case pathways (PD 3B), more formal requirements govern how the first category above should be brought. See Practice Note: Making an application to the Court of Protection.
The particular requirements for medical treatment cases (despite their inclusion within the personal welfare case management pathway) are covered in Practice Note: Serious medical treatment cases in the Court of Protection. Where any requirement identified in that note diverges from the general principle outlined above,...
Private Client
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