S21A MCA 2005 not appropriate where the central issue was whether CANH life-sustaining treatment was in a person’s best interests

Monday 31 July 2017

Director of Legal Aid Casework (1) Secretaries of State for Health and for Justice (2) The Official Solicitor (3) v Briggs [2017] EWCA Civ 1169, 31 July 2017, President of the Queen’s Bench Division (Sir Brian Leveson), Lady Justice King and Lord Justice Burnet

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Director of Legal Aid Casework (1) Secretaries of State for Health and for Justice (2) The Official Solicitor (3) v Briggs [2017] EWCA Civ 1169, 31 July 2017, President of the Queen’s Bench Division (Sir Brian Leveson), Lady Justice King and Lord Justice Burnet

Mr Briggs sustained a brain injury and was in a minimally conscious state. His family was unable to agree with the treating team whether it was in his best interests to continue clinically assisted nutrition and hydration (CANH).  His wife considered it should be withdrawn. The NHS Trust applied to the court under s 16A MCA 2005 (Mental Capacity Act). Mrs Briggs brought proceedings under s 21A MCA 2005 submitting that it was not in his best interests to be a detained resident for the purpose of receiving life sustaining treatment. The reason for applying under 21A was the availability of non-means tested legal aid.

At first instance, Charles J decided as a preliminary issue that Mrs Briggs’ application was properly brought under s21A. He went on to hold that it was not in Mr Briggs’ best interests to continue to receive CANH.

On the appeal on the preliminary issue, it was held:

(i) The decision of the Court of Appeal in Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31 (in respect of which permission to appeal to the Supreme Court was refused) confirms 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.

However it may be the case that as treatment progresses P’s physical condition improves and his care becomes a deprivation of liberty, and at that stage a standard authorisation is required. For that reason the court would hear the appeal, although when Mr Briggs was being cared for in the hospital no standard authorisation was required.

(ii) It was not appropriate to make an application under s 21A where the central issue was whether CANH was in the best interests of Mr Briggs. S 21A goes to a consideration of whether the deprivation of liberty is itself in P’s best interests and, whilst the surrounding circumstances are part of the picture, the question is not whether the circumstances, including the medical treatment P requires (which amount to a deprivation of liberty), are in the best interests of P, but whether it is in the best interests of P to be a detained person.

(iii) Practice Direction 9E should not be interpreted as introducing the requirement that all cases where a decision is to be made about the withdrawal of CANH must come before the court. If 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 s 5 MCA. If there is a dispute in relation to medical treatment of an incapacitated person, and specifically, where there is doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under ss 15 – 17 MCA.

The judgment is available: Director of Legal Aid Casework (1) Secretaries of State for Health and for Justice (2) The Official Solicitor (3) v Briggs [2017] EWCA Civ 1169, 31 July 2017, President of the Queen’s Bench Division (Sir Brian Leveson), Lady Justice King and Lord Justice Burnet

A case summary of Ferreira is available: Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31

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