Category: Uncategorized

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.

MHLA Conference 30 June – full speaker line-up and topics

With a week to go, there are a few places still for this:

The keynote speech will be delivered by The Right Honourable Sir James Munby, President of the Family Division of the High Court of England and Wales. Other presenters include:

Professor Penny Cooper, Barrister – ‘Clear and Understandable? A definition of ‘vulnerable’ and a framework for obtaining the best quality evidence’

Jake Kraft, Legal Aid Agency – ‘Avoiding the pitfalls in challenges under Section 21A to DOLS authorisations’

Sophy Miles, Barrister – ‘Legal Update 2016-17’

Floyd Porter, Chief Assessor of the MC Panel – ‘The new MCA accreditation’

Alex Ruck Keene, Barrister, Writer and Educator – ‘When past and present wishes collide’

Tim Spencer-Lane, The Law Commission – ‘The Law Commission’s review of the DoLS’

We hope you will join us for a stimulating day of debate and to meet like-minded colleagues. The venue is the DoubleTree by Hilton Hotel, London Islington. Lunch and refreshments will be provided. The conference fee is £120 for MHLA members; £180 for non-members.

Full information and online registration here:

 

 

Damages for false imprisonment: an example from immigration detention

Court of Protection practitioners may be interested in the successful challenge by Godwin Chaparadza to actions by the SSHD including, materially for our purposes although only one aspect of his successful claim, much of which is outside the scope of this post, challenges to the lawfulness of his detention between 11 April 2014 and 20 June 2014.

Mr Chaparadza had entered the UK as a student in 2004 and applied for his leave to be varied outside the immigration rules in 2011.  This had the effect of extending his leave to remain pending the decision on that application and any appeal.  The Home Secretary refused the application but did not notify Mr Chaparadza.  When in 2013 he was arrested for driving without insurance and obstruction, he was treated as an overstayer; he applied for asylum and was rejected and after he exhausted his rights to appeal he was detained while reporting in April 2014.   The Home Secretary refused to treat his further submissions as a fresh claim and he sought judicial review of, amongst other matters, the failure to comply with the notice requirement of the 2011 decision and the lawfulness of his detention.

In (very brief) summary the court found that the failure to notify Mr Chaparadza of the refusal of his application in 2011 meant that the refusal itself was of no effect: this triggered the extension of his leave and therefore there was no basis to detain him in April 2014.   The detention was, therefore, unlawful.  The Home Secretary argued that this was a technical error: the judge disagreed.  Reviewing the scope of damages for unlawful detention he awarded Mr Chaparadza £3,500 for the first 3 days on the basis of what he accepted was the shock of being detained and £7,000 for the remainder of the two month period, on the basis that Mr Chaparadza suffered no lasting harm.

In many cases where unlawful detention of P comes to light it will not be possible to demonstrate the tort of false imprisonment which involves is “the unlawful imposition of constraint on another’s freedom of movement from a particular place” (Collins v Wilcock [1984] 1 W.L.R. 1172 at 1178.)  However for those cases where this can be shown there is much to learn from the awards of damages in other jurisdictions.

HRA Time Limits Alert

COP practitioners need to be aware of the implications of a refusal by King J of an application to extend the one year time limit in AP v Tameside MBC [2017] EWHC 65 (QB).  You can read the judgment here.

The claim arose from a familiar pattern of events for COP practitioners: AP had learning disabilities as a result of Down’s syndrome; he lacked capacity to make decisions as to his residence and care as well as to litigate.  He was cared from by his mother until 2011 when he was removed by the local authority and placed in respite accommodation for two and a half years until he returned home in August 2013. In the meantime his mother had been acquitted of an offence of wilful neglect in relation to another family member.  The respite placement was not a registered care home so DOLS could not be used: nor was an application to the Court of Protection made at any time despite an IMCA suggesting this to the local authority in 2011.

AP was represented (via his family) by solicitors from 2012: a claim for damages under the HRA was issued in 2016.

The court had to decide whether it was ‘`equitable having regard to all the circumstances” to allow an extension under s7(5)(b) HRA 1998.

AP argued that although his lack of capacity did not displace the limitation, it should create a “rebuttable presumption” in favour of an extension. In addition to relying on some delays caused by –for example- problems in securing funding, the claimant argued that the defendant had been on notice of the potential claim at least since the release of the independent social worker’s report.

The local authority argued that the claimant had been represented by specialist solicitors since 2012 and could have brought the claim years ago.

The judge concluded:

  1. there is no predetermined list of relevant factors in relation to s 7(5) although proportionality will generally be given weight;
  2. lack of capacity does not “carve out” a rebuttable presumption, although it is a factor to be taken into consideration- here the claimant had family members and specialist solicitors looking after his interests, reducing the weight to be given to this factor;
  • the court’s assessment of the merits and value of the underlying claim is a relevant factor.

 

King J refused to grant the limitation because:

  1. the delay had been considerable
  2. the claimant had been consistently represented since 2011 firstly by the IMCA, then his family, and since 2012 by specialist solicitors. It was “inexplicable” that they had not taken steps to protect his position.
  3. there was a real risk of unfairness and prejudice to the local authority in allowing the claim to proceed – it would be a huge administrative burden
  4. the claimant would suffer prejudice if he could not pursue his claim but this did not equate to injustice.

 

This claim was brought in the QBD but the principles governing extension under s7 (5) HRA will also apply in cases where the claim is brought in the COP.  It is quite common for a COP practitioner to become aware of a convention violation which may have taken place some time before COP proceedings are brought:  for example P may have been placed in a care home in circumstances where the decision-making is very unclear; there may then be a period where P is de facto detained without an authorisation; once one is granted there may be sometime before a s21A challenge is initiated.  In cases where the  violation can be seen to have been brought to an end with the use of DOLS, then the one year time limit will begin to run from the date the violation ceased.  If at the expiry of the one year P was unrepresented because no challenge had been made then clearly this is a factor that would be taken into account (although the fact that an IMCA was instructed was relevant in AP’s case).  However a litigation friend for P cannot assume that either the COP or the civil courts will take a relaxed attitude to time limits.  Those acting for litigation friends should:

ask themselves at an early stage whether there is any reason to believe that P’s convention rights have been breached;

ensure they diarise the expiry date;

if this has passed, consider asking the COP to grant an extension for a limited period (assuming that it is anticipated that the claim will be brought in the COP), with case management directions;

if it is clear that for some reason it will not be possible to make the application in the COP in time, ask for an extension;

if the intention is to apply outside the COP in the QBD or county court, ensure that a claim is made as soon as possible.

 

 

LAG Community Care Law Conference 2017

Matching the rhetoric of rights with reality

10 February 2017, London

EARLY BIRD OFFER EXTENDED- SAVE £50 ON COURSE FEES FOR BOOKINGS BEFORE 23 JANUARY 2017! 

The Care Act 2014 was billed as the ‘most significant reform of care and support in more than 60 years, putting people and their carers in control of their care and support’.  Now that it has had time to bed down, the LAG Community Care Conference 2017 considers the progress made to achieving this ambition: whether the political rhetoric has been matched by the reality on the ground.

Speakers include:

  • Professor Luke Clements
  • Paul Bowen QC
  • Richard Gordon QC
  • Stephen Knafler QC
  • Steve Broach Carolyn Goodall
  • Emily Holzhausen
  • Steve Hynes
  • Michael Mandelstam
  • Sophy Miles
  • Alex Ruck Keene

The conference brings together leading experts in this field who will provide an overview of the new legal scheme and details of case law and policy developments since the Act came into force in April 2015.

Draft programme

9.00 Registration

9.25 Conference open Steve Hynes,Legal Action Group

9.30 Opening address Stephen Knafler QC,  Landmark Chambers

10.05Master Classes A

1. Challenging cuts in care packages – Steve Broach,  Monckton Chambers  and Jamie Burton,  Doughty Street Chambers

2.Carers and the legal landscape – Emily  Holzhausen,  Carers UK

10.50  Break

11.10 Keynote address

Matching rhetoric with reality – Luke Clements, Cerebra Professor of Law at Leeds University

11.45Master Classes B

3. Charging and the future of paying for care – Carolyn Goodall

4. Safeguarding adults – Michael Mandelstam

12.30  Lunch

13.30The Care Act 2014 – is it working?

Discussion, questions and comment (with morning speakers on Panel)

14.15Master Classes C

5. NHS Continuing Healthcare law – Luke Clements, Cerebra Professor of  Law at  Leeds University

6. Care services and people from abroad – Stephen Knafler QC, Landmark Chambers

15.00 Break

15.15 Deprivation of Liberty Safeguards (DolS) and the Care Act 2014 Duties

Paul Bowen QC,  Brick Court Chambers, Sophy Miles,  Doughty Street Chambers   and Alex Ruck Keene,  39 Essex Chambers

16.15 Closing keynote  Richard Gordon QC,  Brick Court Chambers

Please note this programme is liable to change.

Download a booking form here

To book online here

Who should attend:

Legal aid practitioners, human rights lawyers, health and social care lawyers, advisers, local authority social services and legal departments, health authorities and NHS trust managers, residential care managers, directors of public health, disability rights organisations, non-governmental organisations and charities.

Section 21A applications and legal aid

We reproduce below  a version of the case comment on the case of Briggs v Briggs [2016] EWCOP 48 which appeared in the December 2016 39 Essex Chambers Mental Capacity Law Newsletter.

Summary

In this case, Charles J had to decide whether it was 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.   The question arose because the applicant – the wife of, and RPR for a man in a minimally conscious state – brought an application under s.21A MCA 2005 challenging the DOLS authorisation in place at the hospital he was in.  She did so on the express basis that doing so would allow her to claim legal aid on a non-means-tested basis so as to be able to have legal representation to be able to argue her case that continuation of CANH was not in his best interests.    Her position was opposed by the Official Solicitor, the Legal Aid Agency and the Secretary of State (as the Ministry of Justice and Department of Health collectively) on the basis that:

1. In the Official Solicitor’s case, non means tested funding is not available to present arguments relating to the care, support or treatment of a P as they related to conditions of detention, and were therefore outside the scope of s.21A (Article 5 not relating to conditions of detention);

2. On the Secretary of State’s case, such funding was only available where the issues related to “physical liberty.”

Charles J, in an extensive and wide-ranging judgment, came to the very clear conclusion that both of these arguments were wrong, and that it was entirely proper for the Court of Protection on a s.21A application to consider the question of whether CANH was in Mr Briggs’ best interests as part and parcel of the discharge of its functions under s.21A MCA 2005. The following conclusions from his judgment are of particular relevance or importance:

1. The clear conclusion that a DOLS authorisation does not authorise the care plan for, or medical treatment of P, or protect those who are providing them from liability for so doing. It is limited to authorising the deprivation of liberty that those acts create (paragraph 48);

2. The determination of whether the deprivation of liberty is in P’s best interests, necessary and proportionate “has to involve consideration of P’s circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P’s needs in them even if it is limited to a consideration of their effect” (paragraph 50), and hence “the determination of the questions posed by the definition of the best interests condition must involve a consideration of: i) the impact of possible and available alternatives and issues of degree, and ii) as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so” (paragraph 52);

3. That generally the COP should take control of all aspects of the case when proceedings are brought under s.21A MCA (even if an authorisation should remain in place to allow non-means-tested legal aid to continue to be justified: paragraphs 29-34). This was particularly the case in the proceedings before him given the nature of the CANH best interests issue (paragraph 70), in which the determinative or central issue was whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2) MCA 2005. The determination of that issue by the COP would found and so was directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings have been issued under s.21A) (paragraph 76);

4. Whatever the precise requirements of Article 5 ECHR, a literal construction of DOLS shows that they went beyond that 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 (paragraph 87). This showed that:

91. […] in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.

Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.

5. The acknowledgement that the best interests assessor will not be able to carry out the intense scrutiny that the COP can and would have practical difficulties in challenging the medical decisions that found protection from liability under s. 5 MCA. Charles J noted, however, that the assessor could reach his best interests assessment on the basis of the views of the treating team leaving it to P or his RPR to challenge the authorisation or put a condition on the authorisation or limit its duration to enable any dispute to be put before the COP (paragraph 94);

6. Further, even if the best interests requirement under DOLS was limited in the way that the Official Solicitor and the Secretary of State argued, the best interests test as then applied by the Court of Protection in determining whether CANH should be continued was related to matters arising under s.21A(2)(a)-(d), because (1) it was related to the best interests condition of the best interests requirement; (2) and provided the answers or information relevant to the answers to the questions of: (a) the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit); (b) the purpose of the standard authorisation, namely whether the treatment should or should not include CANH; and (c) conditions of the standard authorisation (e.g. about preparations to be made for a move).   These answers informed – Charles J held – what the COP can order under s.21A(3) by way of variation or termination of the standard authority itself or by direction to the supervisory body (paragraphs 96-99).   Charles J noted in this regard that:

This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:

i) inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and

ii) inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).

7. Finally, Charles J noted that, on a purposive intention of the legislation, Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor:

108. Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA. […]

Charles J therefore held that Mrs Briggs could properly raise the issue of whether CANH should be continued as part of her s.21A challenge as RPR for her husband. We address the substantive decision in relation to her husband’s treatment in the separate case comment below.

Comment

On one view, it would appear odd that a s.21A application could be used as a vehicle to challenge decisions about CANH, and it is undoubtedly the case that Mrs Briggs was “lucky” that there happened to be in place a DOLS authorisation at the hospital to allow her to do so (note that Charles J expressly did not decide whether or not in fact Mr Briggs was deprived of his liberty, as this was assumed to be the case for purposes of the preliminary issue decided here).

However, once one steps away from the specific place that CANH has as a type of serious medical treatment (‘SMT’) and the mindset of SMT cases, Charles J’s logic would seem impeccable.   DOLS may have been designed to plug the Bournewood gap, and to that end could have been limited solely to a determining whether or not the deprivation of liberty was necessary and proportionate (the test for Article 5 purposes).   However, the scheme undoubtedly went further to include a specific best interests requirement which, in turn, requires the application of the best interests test under s.4 MCA 2005.  Once the best interests genie was let out of the bottle, that must carry with it the connotation that those concerned with considering the requirement (and the court on a s.21A application) must have a wide view of the nature and purpose of the authorisation and – in turn – asking whether the care and treatment which gives rise to the need for it is, in fact, in the person’s best interests.

It is, perhaps, not surprising – given the implications for legal aid in s.21A applications – that the Secretary of State/Legal Aid Agency are seeking permission to appeal to put the best interests genie back in its bottle.

 

 

Court of Protection Handbook Second Edition now out!

We are very  pleased to announce that the second edition of the Court of Protection Handbook is now available from the LAG bookstore (as paperbook and eBook).  The new edition has been rewritten to take account of the amendments made by the Court of Protection (Amendment) Rules 2015, the Case Management Pilot that started in September 2016 and the Transparency Pilot that started in January 2016, along with coverage of the Re X procedure for judicial authorisation of deprivation of liberty. It also includes new practical guidance for improving the participation of P.

The website has also been thoroughly updated to include a whole new suite of – free – downloadable precedent orders (including those used by the judiciary in the Case Management Pilot).   It also, as before, serves an updater for the book. As ever, feedback is very welcome, to alex.ruckkeene@39essex.com.