The decision of Mr Justice Charles authorising withdrawal of Mr Briggs' treatment in December 2016 received much publicity. At the initial hearing before him, Mr Justice Charles made a procedural decision that where a person (P) is subject to the deprivation of liberty safeguards (DoLS), a medical treatment decision could be challenged by way of a section 21A application (i.e. using the DoLS regime). This meant that P or his/her family would be entitled to non-means tested legal aid when otherwise they would not have been, because a welfare or treatment application brought under the Mental Capacity Act 2005 (MCA) is means tested.

The appeal against this decision was led by the Legal Aid Board framed not as a legal aid case but whether the proceedings issued by Mrs Briggs were properly brought under section 21A of the MCA in the first instance.

The Court of Appeal decision

The Court of Appeal handed down judgment in the case: Director of Legal Aid Casework & Others -v- Briggs on 31 July. Three key messages are to be taken from the lead judgment given by Lady Justice King:

1. Section 21A is not an appropriate route to bring what is essentially a medical treatment dispute to the court:

a. Giving the leading judgment in the case, Lady Justice King found that Schedule A1 was not intended to and does not provide a duplicate route by which personal welfare decisions, and in particular medical treatment decisions, can be made in circumstances ‘where the deprivation of liberty itself is not the real or essential issue before the court.’ (Paragraph 88).

b. In the Briggs case, the fundamental question was whether or not Mr Briggs should be given certain medical treatment and not specifically whether he should be (or indeed was being) deprived of his liberty.

c. The court, however, acknowledged that the scope of a section 21A application is not so narrow that it only requires there to be a care plan and needs assessment to be in place without further consideration of its content.

d. The court is not prevented from determining issues which are specifically focused on whether P should be a detained resident. Examples include those cases where P is in a residential care setting and his family wish for him to return home or in certain situations where contact or restrictions on contact caused by the regime of detention in place result in P being distressed and/or confused to the extent where it would tip the balance against continued deprivation of liberty being in P’s best interests.

2. Not all cases involving the withholding or withdrawal of artificial nutrition and hydration (ANH)/clinically assisted nutrition and hydration (CANH) in permanent vegetative state (PVS)/minimally conscious state (MCS) cases need to come to court:

a. Lady Justice King highlighted the tension between the MCA code of practice and practice direction 9E (dealing specifically with serious medical treatment cases).

b. Paragraph 5.36 of the code provides: ‘…. where there is any doubt about the patient’s best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life-sustaining treatment is in the patient’s best interests.’

c. Lady Justice King, having made clear that where there is inconsistency between the code and the practice direction, the code takes precedence, said: ‘To suggest that every case should go before a judge (even where all concerned are in accord as to what was in the best interests of the patient) would not only be an unnecessary pressure on the overstretched resources of the NHS trusts and add to the burden on the courts but, most importantly, would greatly add to the strain on the families having to face these unimaginably distressing decisions…. In my judgment, the practice direction provides valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court’.

d, She went on to say: ‘…….the Act, together with the code and rules of practice as originally drafted, provided, through the conduit of s.16, a route whereby a court could determine, in cases where a dispute arose (or there was for any other reason a ‘doubt’ as to what is in P’s best interests), whether it was in the best interests of a P to withdraw CANH’..

e. The upshot of this is that it would not always be necessary to make an application to the court to authorise withholding or withdrawing of ANH/CANH in PVS/MCS cases. How this sits with chapter 6 of the code does not appear to have been considered. Paragraph 6.18 of the code provides: ‘Some treatment decisions are so serious that the court has to make them – unless the person has previously made a lasting power of attorney appointing an attorney to make such healthcare decisions for them (see chapter 7) or they have made a valid advance decision to refuse the proposed treatment (see chapter 9). The Court of Protection must be asked to make decisions relating to….the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS).

f. Our advice: professionals should continue to work on the basis that withdrawal in any PVS/MCS cases may need referral to the court and seek legal advice on a case-by-case basis.

3. A person in Mr Briggs’ position is not deprived of their liberty:

a. Lady Justice King confirmed the decision in Ferreira -v- HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31 in respect of those patients in ITU and took this one step further, applying the principles to those in a PVS and/or MCS.

b. She said: ‘… In my view, Ferreira confirms what I myself would regard as an obvious point, namely that the question of deprivation of liberty does not arise where a person who lacks capacity is so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore, by virtue of their physical condition, they are unable to leave the hospital. …..in this court’s view no standard authorisation was necessary, and [Mr Briggs'] case was therefore outside the scope of s.21A in any event.’

c. The question then arises as to whether this means that all patients in PVS and/or MCS are to be regarded as not being deprived of their liberty in any setting. On analysis of this judgment it would appear that the answer to this is ‘yes’.

Guidance provided by the court on the approach to be adopted in practice

The Court of Appeal has helpfully also provided guidance on the proper approach to be adopted in cases where the central issue is medical treatment (serious or otherwise) i.e.:

i. If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA.

ii. If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15 to 17 MCA.

iii. Where, as a consequence of receiving lifesaving treatment, P is unable to leave hospital, that is not a deprivation of liberty which falls foul of Article 5(1). A standard authorisation is not therefore required and any application in relation to treatment will properly be made under section 16 MCA.

iv. If, as a consequence of ensuring that P receives the treatment that is in his or her best interests, P will become subjected to a deprivation of liberty of a type that falls within article 5(1), then there must be authorisation for that deprivation of liberty:

a. if already in hospital or in care under Schedule A1 (or S4A(5)): or

b. pursuant to a court order under section 4A(3) MCA.

v. The Schedule A1 decision will be made pursuant to paragraph 16 on the basis that the proposed deprivation of liberty is in P’s best interests, necessary and proportionate; conditions of the type envisaged by the DOLS code of practice can be recommended if necessary.

vi. If there is a disagreement as to whether there should be a standard authorisation, or in relation to the conditions attached to such an authorisation, then the matter can be brought by way of an application under section 21A to determine any question relating to the authorisation and to make any appropriate order varying or terminating the authorisation. Clinical issues in relation to treatment will remain in the hands of the treating physicians.

Conclusion

The only reason that Mrs Briggs framed her application as an application under section 21A of the MCA was for the purpose of securing funding and whilst fundamentally not a case about legal aid, this is an important decision for the Legal Aid Board who were likely otherwise to face an increase in funding in applications being made to the Court of Protection, which would have been non means tested.

However, the judgment is also important as the Court of Appeal reviewed the way the MCA has developed and it reminds us of the legislative frameworks applying and builds on the Ferreira case making clear whether or not Mr Briggs was, or someone in his position, is in fact deprived of their liberty.

The very helpful guidance provided will also assist professionals in having a better understanding and assist with decision making when considering making applications under the MCA