The gap between law and practice: what Alex Ruck Keene’s Nottingham Inquiry evidence reveals

In his expert evidence to the Nottingham Inquiry on 16 April, Alex Ruck Keene KC (Hon) set out a line of thinking that deserves much wider attention. The central point was not that the legal framework governing mental health decision-making is absent or fundamentally broken. It was that the risks we see in practice arise far more often from how that law is understood and applied than from any gap in the law itself. 

That distinction matters because it shifts the focus away from asking whether we need more legislation, and towards whether the system we have is being translated into practice in a way that is usable, consistent and reliable. As Alex set out, the architecture itself is relatively clear. Statute establishes the law, case law clarifies it, and Codes of Practice are intended to explain it. In practice, most people do not start with statute or case law. They start with the Code, because it is more accessible and aligned to day-to-day decision-making. 

That would be entirely appropriate if the Code consistently reflected the law. The difficulty, as he described to the Inquiry, is that it does not always do so. A Code of Practice cannot make the law, and where there is a conflict, statute and case law prevail. Yet in practice, the Code can read as if it is definitive, sometimes setting out what is expected rather than what is legally required. The system therefore relies on guidance that is widely used but not always fully aligned with the legal position it is meant to represent. 

Why guidance drifts from the law 

This becomes more acute when that guidance is out of date. The Mental Capacity Act Code of Practice, as Alex noted, was written before the latest legislation itself came into force and has not been updated since. Case law has since refined how the Act should be understood, but those developments are not consistently reflected in the guidance most professionals rely on. The expectation that individuals will reconcile this gap themselves, often in pressured environments, is difficult to sustain. 

Part of the reason for this is structural. Codes of Practice are statutory documents, meaning revisions require formal drafting, consultation, legal review and parliamentary scrutiny. This is both important and resource-intensive, so updates tend to be aligned with major legislative programmes, when dedicated teams are in place. Outside of those moments, progress slows. The result is that Codes can remain unchanged for long periods, even as case law evolves and practice moves on. 

Seen in that light, the issue is less about whether the law is clear, and more about how effectively it is translated. If the primary route into the legal framework does not reliably reflect the current position, variation in practice is not surprising. Rather, it is inevitable. 

Where complexity becomes risk in practice 

That same pattern ran through Alex’s evidence on capacity. The legal test itself is well established, but its application in practice is often inconsistent. Capacity is decision-specific and time-specific, yet it is frequently treated as a broader judgement. The presumption of capacity is intended as a starting point, but can be relied upon even where there are clear reasons to question it. The result is not primarily a lack of legal structure, but a misalignment between that structure and how decisions are actually made. 

This is not simply a question of individual practice. It is shaped by the environment in which those decisions sit. Capacity assessments are part of wider processes involving risk, time pressure and incomplete information. Where the surrounding system does not support a clear and consistent approach, variation becomes embedded. 

The complexity increases further when the Mental Health Act and Mental Capacity Act intersect. As Alex’s evidence makes clear, these are distinct frameworks with different underlying logics, yet they are frequently required to operate alongside one another. That creates situations where different elements of care fall under different legal regimes, each with its own requirements and thresholds. The law allows for this, but it does not remove the operational difficulty of navigating it. 

Again, the risk does not arise because the law is silent. It arises because the system within which the law is applied does not always make those interactions clear in practice. Questions about which framework applies, who is responsible, and how decisions should be coordinated across organisational boundaries are often left to be worked out in real time. 

The picture emerging from the Inquiry is one of a system in which guidance, legal interpretation and operational practice are not fully aligned. 

If that is the starting point, then the questions that follow are not about adding more law, but about strengthening the system around it. 

• How do we ensure that the guidance professionals rely on is both up to date and clearly connected to the current legal position? 

• What mechanisms are in place to translate developments in case law into practical, usable approaches at the point of care? 

• How do we support consistent application of concepts such as capacity without oversimplifying them? 

• Where multiple legal frameworks intersect, how do we create clarity about roles, responsibilities and decision-making authority? 

• And perhaps most importantly, how do we build a clearer understanding of how decisions are being made in practice, so variation can be identified and addressed rather than assumed away? 

These are not questions that sit neatly within any single part of the system. They cut across law, policy, guidance and operational delivery. But if the ambition is to reduce risk and improve consistency, they are the questions that need to be answered. 

If you want to explore how these issues play out in practice, we’re unpacking the MCA/MHA interface in our upcoming webinar series with Weightmans on 30 April and 14 May.