The Court of Appeal and the limits of s21A

The Court of Appeal has upheld the appeal by the Director of Legal Aid Casework against the decision of Charles J that an application for the Court of Protection to determine whether life-sustaining treatment was in the best interests of Paul Briggs was properly made under s21A MCA 2005.

You can read the judgment here. The findings as to the scope of s21A will be of importance as will the comments about when an application to the court is required in relation to life-sustaining treatment.

Two applications were befor Charles J: one brought by the NHS Trust providing treatment for Mr Brigss in order to resolve whether such treatment was in his best interests; the other by Mrs Briggs, as her husband’s RPR, under s21A MCA. As the Court of Appeal noted Mrs Briggs made it clear from the start that the reason for using s21A as a vehicle was because this would allow her access to non-means tested legal aid. Without this she would have been unable to secure representation or marshall the evidence which she and Mr Briggs’ family and friends were able to provide and which was determinative in satisfying Charles J that Mr Briggs, if capacitous, would not have wanted treatment to continue.

The Court of Appeal noted the breadth of s21A which allows the court to determine “any question relating to

a) whether the relevant person meets one or more of the qualifying requirements;

(b) the period during which the standard authorisation is to be in force;

(c) the purpose for which the standard authorisation is given;

(d) the conditions subject to which the standard authorisation is given.”

However having regard to the context of s21A and the guides to its construction through the explanatory notes Lady Justice King held:

“88. In my judgment, regardless of whether the amendments to the Act went beyond that which was absolutely necessary in order to fill the Bournewood Gap, I am entirely satisfied that the provisions were not intended to, and do 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.

89. In my judgment therefore, when considered against the structure of the Act together with the Code of Practice and Explanatory notes, Section 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. Sch. 1A para.16 to my mind is clear that each of the conditions which have to be satisfied relate directly to whether it is necessary, proportionate and in the best interests of P to be detained.

90. It is important also to remember that ‘best interests’ is not a concept in the abstract. Anchored to the principle of ‘best interests’ found in section 1 MCA, is the fact that every decision made in relation to an incapacitated person under the MCA (whether deprived of their liberty or not) will be made through the prism of their best interests. The Act is decision specific – in the same way that the ‘functional test’ found at section 3 of the Act requires the determination of whether a person is unable to make a particular decision, (with the result that it is recognised that a person may have the capacity to make some decisions and not others). It follows that a consideration of what is in a person’s best interests in relation to any aspect of the Act must be considered in relation to the specific decision to be made.

91. Schedule A1 para. 16 sets out the best interests requirement where a person is, or is about to be, a detained resident. The three further conditions to be met, (as already identified) are that:

(3) . . . it is in the best interests of the relevant person for him to be detained

(4) . . . In order to prevent harm to the person, it is necessary for him to be a detained resident

(5) It is a proportionate response . . . for him to be a detained resident. 

(My emphasis)

In my judgment, para.16 is clearly geared to a particular decision namely whether it is in the best interests of P to be a detained resident. This decision specific application of the best interests principle dovetails with the DOLS Code of Practice which says that:

“….it is not the best interests assessor’s role to specify conditions that do not directly relate to the issue of deprivation of liberty”

And

“A deprivation of liberty authorisation – whether urgent or standard – relates solely to the issue of deprivation of liberty”

92. 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.”

King LJ rejected – perhaps unsurprisingly – the submission of the Legal Aid Agency that s21A should be constructed narrowly and that all that is required for the purpose of schedule A1 is for the assessors to be satisfied that there is a care plan and a needs assessment in place. She made the following important comment:

” 93. Having said that, in my judgment. Mr Nicholls 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.

94.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.

95.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.”

In Mr Briggs’ case therefore

“99……there was no live issue for determination under s.21A in relation to the deprivation of liberty, there was however a ‘life and death’ personal welfare issue to be decided under ss.15-17 of the Act.

 

King LJ went on the say that following Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31

108. The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreirais therefore as follows:

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 15-17 MCA.

iii) 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.

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 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.

“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 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.”

 

Earlier in her judgment King LJ had commented that PD 9E appears to be in conflict with the Code of Practice in requiring all cases concerning the withdrawal of artificial nutrition and hydration from a person in a persistent vegetative state or a minimally conscious state. The passage above is consistent with her comment that the Code should take precedence.

 

Leveson LJ added

“114. It is not for the court to identify how legal aid funds should be distributed but it may be appropriate to underline the difficulties that families such as the family in this case must face, addressing difficult issues at acutely traumatic times in their lives. If agreement between the authorities and the family is possible, litigation will not be necessary but, if there is disagreement, the resulting issues are likely to be complex both as to the facts and the law. Assuming that the merits of any particular proceedings can be demonstrated, consideration should be given to the public interest justification of adding financial pressures to the many others that the affected families face.”

There is much to consider in this judgment  It is not known whether many other medical treatment cases have been brought under s21A since Charles’ judgment. The prime reason for using the mechanism of s21A in Mr Briggs’ case was that it was the only way of ensuring that his family were able to participate fully in the application.

 

It is important that the Court’s recognition that the best interests assessment for DOLS may engage a range of issues is reflected both in DOLS decision-making and in legal aid funding decisions.

 

Once again this highlights the unsatisfactory result of the restrictions on non-means tested legal aid (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480, Regulation 5). Some patients in hospital lacking capacity to make critical decisions will have access to non-means tested legal aid: others will not. Equally a person lacking capacity deprived of his liberty in a care home under DOLS will have access to non-means tested legal aid: but if the care home re-registers as a supported living placement delivering the same care package, the resident will need to satisfy a means test.   Parents who face care proceedings in relation to a child with learning disabilities would receive non-means tested legal aid: but would have to satisfy a means test to get legal aid to resist an application by the same statutory body to remove the same child once he or she is over 16 and lacks capacity for the purpose of the MCA. Amongst other matters this case illustrates the misery and potential injustice caused by such anomalies.

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