In Re Briggs  EWCOP 48, Charles J has held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005. Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under s.21A MCA 2005. Although an apparently technical question, a great deal turned upon his conclusion because it meant that the applicant – Lindsey Briggs – is eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH that is to be determined by the COP at a hearing presently fixed to take place at the end of November.
The case is also of some considerable interest for Charles J’s analysis of what precisely DOLS involves, and his confirmation (at paragraph 87) that they go beyond what is required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself.
We will have further analysis of this case in the December issue of the 39 Essex Chambers Mental Capacity Law Newsletter.