Legal Update: The Court of Appeal rules that MCA S.21A cannot be used as a vehicle for challenging medical treatment decisions

Director of Legal Aid Casework et al v Briggs [2017] EWCA Civ 1169 The Court of appeal overturns Court of Protection decision allowing a challenge to the continuance of life-sustaining treatment to be considered within the scope of (non-means tested legal aid funded) MCA s.21A proceedings – thus closing a potential loophole which would have enabled applicants to secure legal aid funding for what are essentially serious medical treatment rather than deprivation of liberty challenges.

Background

The case of Briggs v Briggs came before Mr Justice Charles in the Court of Protection on two occasions in 2016. We reported on the judgment concerning the continuance of life sustaining treatment in our legal update dated 06/02/17. Mr Briggs was in a minimally conscious state and his wife issued an application in the Court of Protection essentially to obtain a determination on whether it was in her husband’s best interests for life sustaining treatment to continue (her view being that it wasn’t).

There had been an earlier hearing before Charles J to address a preliminary issue of whether the proceedings issued by Mrs Briggs were properly brought under s. 21A of the Mental Capacity Act 2005 (MCA) – a procedure for challenging a deprivation of liberty safeguards (DoLS) authorisation. Mr Briggs was subject to a DoLS authorisation in hospital and his wife was his appointed Relevant Persons Representative (RPR).

Mrs Briggs had brought an application under s.21A to challenge her husband’s DoLS authorisation as a means of obtaining a declaration as to whether it was in his best interests to be kept alive by clinically assisted nutrition and hydration (CANH). Crucially, a s.21A application entitled Mrs Briggs to non-means tested legal aid to fund legal representation. No such funding is available to an applicant making a conventional ‘serious medical treatment’ application under s. 16 of the MCA. It was for this reason that Mrs Briggs issued her application under s.21A rather than s.16.

The Legal Aid Agency, Official Solicitor and Secretary of State opposed the use of a s.21A application for what was essentially a best interests determination about medical treatment rather than about liberty and, as such, they argued would not be eligible for non-means tested legal aid. Charles J disagreed. He concluded that Mrs Briggs had properly brought proceedings under s.21A and that it was entirely proper for the Court of Protection to consider whether continuation of CANH was in Mr Briggs’ best interests when discharging its functions under s.21A. Therefore the case proceeded to a substantive best interests hearing with Mrs Briggs having the benefit of legal aid funding. On 20^th December 2016 the judge held that it was not in Mr Briggs’ best interests to continue to receive CANH and he died in a hospice in January 2017.

This judgment had significant implications for legal aid funding in s.21A applications and perhaps not surprisingly the decision was appealed by the respondents.

Court of Appeal Judgment

In the leading judgment given by Lady Justice King, the Court of Appeal overturned Charles J’s decision on the s. 21A preliminary issue. She made clear at the outset that the case before the court was not about the availability of legal aid funding stating ‘[w]hilst it will undoubtedly be regarded by many as perturbing that non-means tested legal aid is unavailable to people making an application to the court in circumstances where a dispute has arisen in respect of the withdrawal of life sustaining treatment, the case before this court is not about legal aid, but solely about the scope of s. 21A MCA’.

King LJ dismissed Charles J’s suggestion that s.21A not only relates to decisions about deprivation of liberty but also the circumstances which lead up to the deprivation of liberty. On the contrary, she declared that the conditions which need to be met in order to satisfy the  best interests requirement for a DoLS authorisation under Schedule 1A para 16 relate directly to whether it is necessary, proportionate and in P’s best interests to be detained. She elucidated as follows:-

[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 in her best interests. In my view, in such circumstances, the deprivation of liberty is secondary. The real question is whether or not 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.17MCA and not an application under s.21A.

However, King LJ acknowledged that there are many issues relating to a deprivation of liberty which need appropriately to be considered by the DoLS best interests assessor and which may be reflected in recommendations for conditions to be attached to the DoLS authorisation. She gave as an example an application relating to the wish of P and P’s family to live at home set against a DoLS best interests assessor’s view that it is in P’s best interests to reside in a care home where P will consequently be deprived of his liberty.  King LJ points out that such cases require a more extensive consideration of the relevant circumstances than simply ensuring that a care plan and needs assessment are in place without further consideration of their content. However she acknowledged that a DoLS best interests assessor has neither the expertise nor the facilities to carry out the intense scrutiny necessary to reach a conclusion as to whether or not it is in P’s best interests to have a particular medical treatment and neither is such a decision necessary in order to decide whether a DoLS authorisation is in P’s best interests. It is not for the best interests assessor to engage in the merits of a dispute as to whether, as in Mr Briggs case, treatment should or should not be withdrawn.

It is important to note that the Court of Protection decisions in Briggs were superceded by the Court of Appeal decision in Ferreira v HM Senior Coroner for Inner South London & Others [2017] EWCA Civ 31 which we reported on in our legal update dated 27/01/2017. In Ferreira it was held that the administration of life-saving treatment does not, in general, give rise to a deprivation of liberty. In Briggs King LJ acknowledged the significance of this decision:-

[F]or 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 [DoLS] authorisation was necessary and, as a consequence, the only available application open to the respondent [Mrs Briggs] in relation to the withdrawal of CANH should have been through the conventional s.16 route.

The Court of Appeal set out helpful guidance post Ferreira on the proper approach to be adopted where the central issue is medical treatment:-

1. 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
2. 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.
3. 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.
4. 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:
5. If already in hospital or in care. under Schedule A1 (or S4A(5)): or
6. Pursuant to a court order under section 4A(3) MCA
7. 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.
8. 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.

Comment

Mrs Briggs decision to issue her application under s.21A instead of the conventional s.16 approach was motivated by the availability of non-means tested legal aid for the former which was not available for the latter.  As a consequence Mrs Briggs benefitted from representation at court by both leading and junior counsel and was able to fully participate in the proceedings concerning her husband. Given the complex legal issues involved in a case of this type Mrs Briggs would undoubtedly have struggled to put her case before the court without legal representation .

Nevertheless, the Court of Appeal made clear that the case before the court was not about the availability or otherwise of non-means tested legal aid – but was about the scope of s. 21A. Clearly Mrs Briggs would not have been able to bring her application under s.21A had her husband not been subject to a DoLS authorisation while in hospital – so it was fortuitous for her that he was. Post Ferreira it is  now clear that in  cases like that of Mr Briggs, where a patient is unable to leave hospital due to their physical condition and the life-saving treatment they are receiving,  no deprivation of  liberty will generally arise and no DoLS authorisation will be required.

The wider issue of whether non-means tested legal aid should be made available to patients and/or their families to bring a serious medical treatment dispute (such as the withdrawal of life sustaining treatment) before the court was barely touched upon by the Court of Appeal although King LJ did acknowledge that many would be perturbed to know that non-means tested legal aid was unavailable in such circumstances.

This case serves to demonstrate the injustices that exist concerning the availability of non-means legal aid to families of incapacitated adults (and indeed parents of young children) who wish to bring a serious medical treatment disputes before the court or having been joined as a party in such proceedings, wish to be able to participate fully.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk