Re Briggs (Incapacitated Person)
| Jurisdiction | England & Wales |
| Judge | Charles J |
| Judgment Date | 24 November 2016 |
| Neutral Citation | [2016] EWCOP 48 |
| Docket Number | Case No: COP 12942115 |
| Court | Court of Protection |
| Date | 24 November 2016 |
[2016] EWCOP 48
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Charles
Case No: COP 12942115
Case No: 12942215
In the Matter of S21A of the Mental Capacity Act 2005
And in the Matter of Paul Briggs
And in the Concurrent
Proceedings in the Court of Protection
In The Matter of SS15–16 of The Mental Capacity Act 2005
And in the Matter of Paul Briggs
Victoria Butler-Cole (instructed by Irwin Mitchell LLP) for Mrs Briggs
Conrad Hallin (instructed by Hill Dickinson LLP) for the Walton Centre and the WCCG
Joanne Clement (instructed by the Government legal Department) for the MoJ and the DoH
Eleanor Grey QC and Nicola Greaney (instructed by the in-house solicitor for the LAA) for the LAA
Vikram Sachdeva QC instructed by the Official Solicitor
Hearing dates 7 & 8 November 2016
Introduction and Overall Conclusion
This is a public document. The hearing was held in public and no reporting restriction order has been made. It was held to address the preliminary issue whether the proceedings issued by Mrs Briggs were properly brought under s. 21A of the Mental Capacity Act 2005 (the MCA).
That issue turns on the question whether the dispute about whether it is in the best interests of Mr Briggs for him to be given clinically assisted nutrition and hydration (CANH) is one that can properly be determined in proceedings brought under s. 21A of the MCA. The MoJ and the DoH (together the Secretary of State), the LAA and the Official Solicitor argue that it cannot and as a result Mrs Briggs is not eligible for non means tested funding through legal aid for representation in respect of that best interests issue.
A central plank in their argument is that the determinative best interests issue in this case relates to the medical treatment of Mr Briggs and so:
i) it is not a matter to be taken into account by decision makers and the Court of Protection (the COP) in applying the best interests requirement defined by paragraph 16 of Schedule A1 of the MCA for the purposes of the Deprivation of Liberty Safeguards (the DOLS) introduced into the MCA by the Mental Health Act 2007 (the MHA 2007), but
ii) it is a matter that falls to be taken into account by decision makers and the COP in applying the best interests test for the purposes of s. 5 (which applies to decision makers on the ground) and s. 16 (which applies to the COP) and so in accordance with the principles and approach set out in s. 1 and s. 4 of the MCA.
This argument was founded on submissions that:
i) as a matter of principle (a) the purpose of Article 5 is to protect the individual from arbitrariness, and (b) provided the individual is in the right type of placement, Article 5 is not concerned with the suitability of his conditions or treatment, and so
ii) as Article 5 does not regulate the conditions in a hospital or the treatment that the individual receives there, and the DOLS and so s. 21A were enacted to address the Article 5 rights of individuals (and not their other rights e.g. under Articles 2, 3, 6 and 8) they were not intended to and do not regulate or give an individual the ability to challenge the conditions and treatment given to him in a hospital.
As appears later I accept that:
i) the authorities establish the principles relied on concerning the extent of an individual's Article 5 rights, and
ii) the DOLS were introduced as part of the amendments to the MCA designed to address the Bournewood Gap.
But, I do not accept that the CANH issue cannot properly be addressed in proceedings under s. 21A.
Conclusion. In my view the answer to the preliminary issue is that Mrs Briggs' proceedings were properly brought under s. 21A because on a literal and purposive approach it is an issue to be considered:
i) 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
ii) under s. 21A(2), (3), (6) and (7) of the MCA.
It follows that, in my view, she is eligible for non means tested legal aid funding for representation on the CANH issue that is to be determined by the COP at a hearing presently fixed to take place at the end of November.
Background and introductory comments
On 3 July 2015 Mr Briggs was the victim of a road traffic accident. As a result of that accident he suffered serious brain and other injuries and was rendered unconscious. He is now in a minimally conscious state and does not have the capacity to make decisions relating to his care and treatment or to communicate his wishes and feelings to others. His survival has been and is dependent on the package of care and treatment he has received and is receiving in hospital. That care and treatment includes CANH. If it is no longer given he would die.
His present placement is at a hospital within the Walton Centre NHS Foundation Trust (the Walton Centre) and he has been there since 22 January 2016.
The case has been argued before me on the premise that:
i) applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 ("Cheshire West") Mr Briggs is being deprived of his liberty at the Walton Centre, and
ii) the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).
One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.
In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
I also make the general comments that:
i) the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and so
ii) to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.
A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.
The two sets of proceedings before me have been initiated because there is a disagreement between Mrs Briggs (and other members of Mr Briggs' family) and his treating team as to whether it is in his best interests for him to be given CANH. The treating team is of the view that it is and that Mr Briggs should move to a rehabilitation unit, where it will be continued. Mrs Briggs is of the view that it is not and that her husband should receive palliative care. The first option entails a move to a different placement and treating team. Subject to a change in the views of the treating team and others at the Walton Centre, if the COP concluded that CANH was not in Mr Briggs' best interests that alternative would also involve a move to a different placement, and probably a hospice.
Before me the case was argued on the basis that the decision of the COP on that best interests issue will, or probably will, involve a move and that:
i) on a move to a rehabilitation centre (or if and so long as he remains where he is) Mr Briggs will continue to be deprived of his liberty that would have to be authorised and the DOLS would apply to him, although the deprivation of liberty might be authorised by an order made by the COP rather than a continuing authorisation under the DOLS, and
ii) on a move to a hospice, Mr Briggs will continue to be deprived of his liberty and it would have to be authorised under an order of the COP or possibly if they applied under the DOLS.
As is apparent from what I have said the disagreement that has caused this litigation relates to a best interests decision about serious medical treatment and its resolution is determinative of what will happen to Mr Briggs. So, this case can and has been described as a case relating to serious medical treatment. But in my view it can also be said that this case concerns and determines and so is about:
i) whether the authorisation of Mr. Briggs' deprivation of liberty should continue to be under the DOLS or whether it should be founded on an order of the COP,
ii) whether the...
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