Director of Legal Aid Casework et al v Briggs
Judge: Court of Appeal ((Sir Brian Leveson, King and Burnett LJJ))
Citation:  EWCA Civ 1169
The Court of Appeal has overturned the decision of Charles J that he could, within the scope of MCA s.21A proceedings (and hence non-means-tested legal aid), consider whether life-sustaining treatment should be continued to be provided to a man in a minimally conscious state subject to a standard DoLS authorisation. The court was intensely alive to the consequences of their decision as regards legal aid (see paras 10 and 113-14) but reached their conclusion on the basis of a strict construction of the statute.
Giving the leading judgment, King LJ held that challenging detention under MCA s.21A “relates to decisions about the deprivation of liberty and not, as suggested by the judge, to the circumstances which lead up to the deprivation of liberty” (para 89). Best interests, like capacity, is decision-specific and the particular decision is whether it is necessary, proportionate and in the best interests of P to be a detained resident (paras 89-90). Moreover:
- In my judgment, a question in relation to serious medical treatment is not fundamentally a question in relation to deprivation of liberty. The issue before the court, as was accepted by the judge, was whether P should or should not be given certain medical treatment. It may be that following the making of such a decision there will be implications in relation to P’s liberty as was recognised by the judge. For example: there may have to be a deprivation of liberty to prevent a woman from leaving the labour ward in circumstances where she lacks capacity and refuses a caesarean section which is clinically indicated and in her best interests. In my view, in such circumstances, the deprivation of liberty is secondary. The real question is whether it is in her best interests to have the surgery, whether or not it is in her best interests to be deprived of her liberty is then determined against the backdrop of the decision in relation to the proposed serious medical treatment. In my judgment that makes the appropriate application an application made under s.15 – s.17 MCA and not an application under s21A.
The Court of Appeal did not narrow the scope of MCA s.21A – and by extension, DoLS – as much as had been sought by the Legal Aid Agency, which argued that “under Schedule A1, all that is required within the best interests assessment is for the assessors to satisfy themselves that there is in fact a care plan and a needs assessment in place. No further detailed examination or consideration of the contents is […] either required or appropriate.” However, King LJ recognised that:
- Having said that, in my judgment, [the Legal Aid Agency] has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.
- Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.
- Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”
Medical treatment issues, King LJ noted, were a separate matter, about which best interests assessors have neither the expertise nor the facilities to intensely scrutinise; nor is such a decision necessary for them to decide whether the deprivation of liberty of itself was required. If there was an outstanding treatment issue, she held, P can be protected by limiting the duration of the standard authorisation (para 97).
The Court of Appeal set out a number of observations in relation to medical treatment, both as to the application of the concept of deprivation of liberty and also as to the potential need for the involvement of the court. King LJ noted that:
105 … For my part, I find it hard to see how an argument could now be framed to the effect that Mr Briggs was being deprived of his liberty during the months he was in hospital and being cared for in a minimally conscious state. That being so, no standard authorisation was necessary and, as a consequence, the only available application open to the respondent in relation to the withdrawal of CANH should have been through the conventional s.16 route.
- In my view, Ferreiraconfirms 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. It may be the case however that as the treatment progresses and P’s physical condition improves, his or her ongoing care becomes a deprivation of liberty and, at that stage, a standard authorisation or court order will be required if the continued retention of P on the ward is not to become unlawful.
- All parties agree that circumstances will continue to arise where a person requiring treatment will meet Lady Hale’s ‘acid test’. For that reason the court decided to hear the case, notwithstanding that this case itself is now academic, not only because Mr Briggs has now died, but also because in this court’s view no standard authorisation was necessary, and his case was therefore outside the scope of s.21A in any event.
- The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreira is therefore as follows:
- 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.
- 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 15-17 MCA.
- Where, as a consequence of receiving life saving 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 s.16 MCA.
- 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.
- The Sch. A1 decision will be made pursuant to para. 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.
- 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 to by way of an application under s.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. (emphasis added)
This is a significant decision in a number of respects. Reinforcing Ferreira, it narrows the scope of Article 5 ECHR where P 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.” Indeed, the court considered that Mr Briggs was not deprived of his liberty. It also strives to draw a distinction between “the deprivation of liberty” and “the circumstances which lead up to the deprivation of liberty”. Following Cheshire West, it has become increasingly difficult to distinguish between these two. Indeed, the Law Commission’s proposal for reform is very much founded upon an approach that is contrary to that expected in the present case:
1.29. A DoLS authorisation simply authorises “deprivation of liberty”. By contrast, an authorisation under the Liberty Protection Safeguards would authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty. This is an important difference. It focuses attention at the authorisation stage not simply on the binary question of whether a person should be deprived of their liberty or not, but on the question of the ways in which a person may justifiably be deprived of liberty… (emphasis added)
The Court of Appeal also noted at para 56 that “The statutory DOLS code therefore says in terms that the assessor is to make conditions in relation only to the deprivation of liberty itself.” But, again, given how low the threshold is for deprivation of liberty, it is difficult to distinguish the deprivation from the care. Note also how issues of contact clearly fall within the best interests assessor’s remit.
Separately, the observations at para 108(i), whilst strictly obiter, are of considerable importance in light of the current debates as to whether, and how, Practice Direction 9E to the Court of Protection Rules should be amended – and whether, and, if so, on what basis, medical treatment decisions need to come to court. This – strong – Court of Appeal (including both the President of the Queen’s Bench Division and the new Lord Chief Justice) has clearly taken the view that it is only in the case of dispute that a medical treatment decision ever needs to come to court, (see further in this regard, inter alia, Alex’s article on s.5 and the articles in the July 2017 issue of the Journal of Medical Ethics).