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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Briggs v Briggs & Ors  EWCOP 53 (20 December 2016)
Cite as: (2017) 154 BMLR 26,  EWCOP 53, 154 BMLR 26,  WLR(D) 25,  4 WLR 37,  COPLR 42,  Med LR 88
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IN THE MATTER OF S21A OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF PAUL BRIGGS
Strand, London, WC2A 2LL
B e f o r e :
|(1) PAUL BRIGGS|
|(By his litigation friend, the Official Solicitor)|
|(2) THE WALTON CENTRE NHS FOUNDATION TRUST|
|(3) WIRRAL CLINICAL COMMISSIONING GROUP||Respondents|
Vikram Sachdeva QC instructed by the Official Solicitor as Mr Briggs' litigation friend
Conrad Hallin (instructed by Hill Dickinson LLP) for the Walton Centre and the WCCG
Hearing dates 28 November to 1 December 2016
Crown Copyright ©
Charles J :
This judgment is a public document. The hearing was held in public and no reporting restriction order has been made.
(1) This case raises issues of life and death and so vitally important principles and strongly held views. The decision I have to make is whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs is in a minimally conscious state (MCS). This is the result of the serious and permanent brain damage he suffered as the victim of a traffic accident on 3 July 2015. He is not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in Airedale NHS Trust v Bland  AC 789 does not apply to him. That approach was that life-prolonging treatment of a patient in PVS is properly regarded as being, in medical terms, useless or futile (see Lord Goff at 869 B/F) or that life-prolonging treatment confers no benefit on the patient (see Lord Keith at 859D) and so in reality the decision whether to continue life-prolonging treatment does not involve a weighing operation of competing factors (see Lord Goff at 869A).
(2) The life of Mr Paul Briggs does confer benefits and has value. This means that this case raises fundamental issues relating to the protection of persons who are extremely vulnerable and who have not previously made and now cannot make valid and applicable decisions for themselves.
(3) The default position for such persons is founded on the sanctity of life and so the strong presumption that lives that have value should be continued by life-sustaining treatment (here CANH).
(4) Subject to further clarification of the alternative care and treatment plans the consequence of my decision will be that either:
a. Mr Briggs will move to a rehabilitation unit for further assessment and treatment, which will include CANH, with the possibility that his degree of consciousness will improve, or
b. Mr Briggs will move to a hospice where he will receive palliative care, his CANH treatment will not be continued and as a result he will die.
(5) The key issues are whether on the application of the best interests test set by the Mental Capacity Act 2005 (the MCA) to all the circumstances of this case:
a. I can, and
b. if I can, whether I should
make a welfare order based on a care and treatment plan that Mr Briggs will move to a hospice on the basis that I have concluded that this is what Mr Briggs would have wanted if he now had the capacity to make the decision himself about his future treatment and care.
(6) Conclusion. I fully acknowledge and accept that Mr Briggs' life has value. I also recognise his natural instinct of survival.
(7) However, in all the circumstances of this case I have concluded that the weightiest and so determinative factor in determining what is in Mr Briggs' best interests is what I am sure he would have wanted to do and would have concluded was in his best interests. And so, for him, his best interests are best served by giving effect to what he would have been able to dictate by exercising his right of self-determination rather than the very powerful counter arguments based on the preservation of his life.
(8) Discussion. The fundamental principles that are engaged are, on the one side, the sanctity of life and so the very strong but not absolute presumption in favour of continuing Mr Briggs' life and, on the other side, the principle of self-determination.
(9) Mr Briggs is clinically stable and not presently in need of invasive treatment and so the central issue is the assessment of the weight to be given to and so of the balance to be struck between giving effect to (a) the very strong presumption in favour of the preservation of life, and (b) the right to self-determination of a person who before he or she loses capacity has not made a valid advance decision (or a lasting power of attorney) applicable to the carrying out or continuance of the relevant treatment (here CANH).
(10) A relevant factor in the rival arguments is the effect of a valid and applicable advance decision applicable to the refusal of the relevant treatment (here CANH). It was common ground before me that if Mr Briggs had made such an advance decision it would have been decisive and so no decision would have had to have been made under the MCA best interests test. I agree.
(11) This effect of a valid and applicable advance decision is an example of a situation when the principle of self-determination has precedence over the very strong presumption of preserving life. It also shows that a decision made by a person when he or she had capacity to make it can dictate what happens to them at a later time when they lack capacity.
(12) Evidence and argument was heard over 4 days. Unusually, the proceedings were brought by Mr Briggs' wife rather than the NHS Trust and the Wirral Commissioning Group (the WCCG) who sensibly and compassionately discontinued the proceedings they had brought. A consequence of that procedural approach was that Mrs Briggs was eligible for non-means tested legal aid. This had the important result that she was able to instruct solicitors and counsel without bearing all or a part of the costs herself from savings. It is quite clear that without that representation it would have been almost impossible for Mrs Briggs to advance the arguments and evidence of Mr Briggs' family. Even if she had been emotionally able to do that the Court would not have received the assistance it has through her representation and the hearing would have been much longer. So in this case the alarming result of the situation that arose before Mr Justice Baker in Re M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment)  1 WLR 1653 of public funding not being provided to the family did not arise. I refer to significant public funding problems relating to proceedings that concern people who lack capacity in my judgment on the preliminary issue in this case (reported at  COP 48).
(13) I mention the length of the hearing and representation because none of the earlier decisions makers had that luxury of time and the considerable assistance given by the counsel who were instructed by the parties. My focus, and that of the parties, was on the present and not the history of the decision making.
(14) It was argued by the NHS Trust and the WCCG that s. 4(5) of the MCA precluded me from making an order that had the result that the CANH treatment was not continued. I do not agree.
(15) If I rejected that argument based on s. 4(5) of the MCA, it was common and correct ground that my decision must be based on the application of the best interests test set by the MCA (see in particular ss. 1(5) and 4). That test has been considered by the Supreme Court in Aintree University Hospitals NHS Trust v James  AC 509. The one and unanimous judgment of the Supreme Court was handed down by Baroness Hale. It addresses the relevant history and so legal background to the MCA and it gives important guidance on the approach to be taken to the application of the MCA.
(16) It is the application of the MCA, rather than the common law and inherent jurisdiction set out in the earlier cases that matters. However, the earlier cases remain relevant because they provide useful analyses of the relevant issues and form a central part of the background to the recommendations of the Law Commission on which the MCA was based and so to the MCA.
(17) The earlier cases show, and this is confirmed in the Aintree Hospitals case at paragraph 22 that the question that the court must ask itself is:
Whether it is in Mr Briggs' best interests for it to give consent to his treatment by CANH?
If it concludes that the answer is "yes" the court gives that consent. If it concludes that it is "no" then:
The court will not be able to give its consent on behalf of Mr Briggs and it will follow that it will be lawful to withhold or withdraw it.
This definition of the question is crucially important and is derived from the earlier case law, in particular the Bland case, where Lord Goff explained at 868 A/D that the correct formulation of the question is crucial and that it is not whether it is in the best interests of the patient that he should die but whether it is in the best interests of the patient that his life should be prolonged by the relevant treatment and care (here CANH).
(18) That definition of the question dictates the analysis and effect of the answer, and so the legality of the continuation or withdrawal of life-sustaining treatment for persons who lack the relevant capacity to make their own decisions on whether they should or should not consent to such treatment. It reflects the doctrine of "double effect" which excludes the purpose of causing death and allows death to be knowingly caused as a side-effect and so draws a distinction between the intention underlying an action on the one hand and the consequences that are foreseen but are not intended on the other.
(19) This analysis of the issue and the effect of the answer means that this is not an assisted dying or euthanasia case.
(20) The MCA best interests test is not a substituted decision test, although it includes elements of that approach (see the Aintree Hospitals case at  AC 501 paragraph 24) and it is one that falls to be applied now, and so in respect of Mr Briggs after his accident.
(21) The Supreme Court confirm in the Aintree Hospitals case that the MCA best interests test is to be applied in a holistic way (see  AC 591 at paragraphs 26 and 39), and that the MCA, and a holistic application of the best interests test, are concerned with enabling the court to do for the patient what he could do for himself if he had full capacity (see the Aintree Hospitals case at paragraphs 1 and 18).
(22) However, as is clear from the MCA, the Supreme Court is not saying that a conclusion on what the relevant patient would have wanted and done if of full capacity is determinative of his best interests having regard to all relevant circumstances. Indeed, there are many examples of cases in which it has been concluded that this is not the case.
(23) This leads to the question whether on a holistic approach the court can conclude that it is in the best interests of a person who lacks capacity that life-sustaining treatment should not be carried out or continued on them on the basis of the weight it gives to a conclusion that this is what he or she would have wanted and decided if they had not specifically considered the position they are now in following their loss of capacity or factors relating to it.
(24) In my view the answer is that the court can do this. And so the issue is whether I should do so having weighed all the relevant and competing circumstances.
(25) As shown by earlier cases before and after the MCA came into effect, I stress that important and weighty factors in the consideration of whether the court can conclude what treatment the relevant person would have wanted and, if it can, the weight to be given to that conclusion in all the circumstances of the case including in particular the very strong presumption in favour of preserving a life that has value, include
(A) Points that the relevant patient has not considered or been able to consider:
a. the question whether he or she would wish such treatment to be withdrawn if they were in MCS, or
b. what medical opinion considered to be his or her best case scenario following their emergence from MCS, and the prospects of that happening, or
c. the impact of a serious brain injury on his or her likely feelings about a life with very severe physical handicaps, or
d. the possibility or likelihood of the suffering pain if CANH is withdrawn
(B) The clinical stability of the patient and so for example the absence of undue pain or discomfort and an acute illness and the existence of a settled or happy presentation.
(26) The oral evidence. I heard oral evidence from members of Mr Briggs' family and a colleague, two members of his treating team (a consultant in neurological rehabilitation who had been responsible for the care of Mr Briggs since 26 January 2016 (Dr. Mahendran), and a specialist speech and language therapist (rehabilitation) (Ms Ankers) who is a SMART assessor and carried out a SMART assessment on Mr Briggs between 23 February and 17 March 2016, and a consultant in neurorehabilitation since 1998 (Dr Walton) who was one of the Royal College of Physicians working party whose report in 2013 is titled "Prolonged disorders of the consciousness – National Clinical Guidelines" (the "2013 National Clinical Guidelines"). Dr Walton had given a second opinion and then was also instructed to give expert evidence in these proceedings. I take this opportunity to pay tribute to all the witnesses. They all gave that evidence honestly and helpfully. It was clear that the rival views held by the family and the treating team were strongly held and flowed from their respective involvements in the life of, and so their personal and professional relationships with, Mr Briggs.
(27) The involvement of the treating team has been with Mr Briggs after the accident and so a Mr Briggs who has serious and permanent brain injuries and who is and will be totally dependent on others for his day to day physical care. And so with the severely disabled Mr Briggs who lacks capacity. The involvement of his family and friends has been with Mr Briggs as a wife, mother, brother, sister in law and friend before and after his accident and so with the loving husband, father, son and brother, popular colleague and very physically active outdoors Mr Briggs as well as with the seriously disabled Mr Briggs who now lacks capacity.
(28) These different involvements have clear links to the central clash of principles that arises in this case, namely:
a. The sanctity of life and so the preservation and prolongation of Mr Briggs' life. Understandably this lies at the heart of the strongly held and consistent view of Mr Briggs' treating consultant that it would be unethical to withdraw his treatment by CANH and so deprive him of the opportunity of leading a life of value.
b. Autonomy and so self-determination which enables a person with capacity to do so to refuse life-sustaining treatment and so as a consequence to choose the side-effect of death. That decision can be made for any reason including that in existing or defined future circumstances that person considers that his or her life is or would be intolerable or has or would have no value and so not worth living. Understandably, the family want to achieve the result that they are convinced Mr Briggs would have wanted and decided on.
(29) The medical evidence and my findings. There was a significant amount of common ground recorded in a statement provided to me by counsel for the parties after the hearing. What follows reflects that common ground and sets out my findings and conclusions on the disputed matters.
(30) The diagnosis. As a result of his accident Mr Briggs sustained multiple injuries including traumatic brain injury. CT scans in June and September 2016 reflect the evolution of consequences of diffuse axonal injury (disruption to the neurological pathways within the brain that can be associated with poor neurological recovery) with development of cerebral atrophy (loss of brain volume). His current clinical presentation is in keeping with the changes seen on the CT brain scans. So there is clear physical evidence of extensive brain damage. And it is common ground that the average life expectancy for patients with such severe brain injury is of 9 to 10 years if appropriate medical treatment is given.
(31) It is common ground that Mr Briggs is in a MCS. The main utility of a SMART test is to distinguish between whether a person is in a MCS or a PVS. Mr Briggs' was the subject of a SMART assessment over the period 23 February to 17 March 2016 which diagnosed that he was in MCS minus. Clinical observation of Mr Briggs since then supports the view that he has demonstrated some progress and so it is common ground that he has improved since the SMART assessment but remains in MCS. There are degrees of MCS and he is categorised as being between MCS minus (the closest to VS) and MCS plus (the nearest to emergence from MCS). It was accepted in oral evidence that some of the observations relied on to show his improvement need to be treated with caution. For example, because the appropriate process was not fully observed and because use of a switch reliant on motor function (a process being used to assess the giving of "yes" and "no" answers) is unlikely to be reliable because of unpredictability of dystonia and increased tone and Mr Briggs may find it difficult to press a switch twice consecutively to indicate a "no" response. Also, if the helpful graph produced by Ms Ankers from the medical notes is continued to the date of the hearing (as she helpfully did during her evidence) earlier higher performance is not repeated.
(32) However, it remained common ground and I accept that (a) there has been some improvement since the SMART assessment, (b) the assessment of Mr Briggs' level of awareness has been carried out under sub-optimal conditions on his acute ward as regards environment (and so, for example, noise and other distractions), positioning and some medication, and (c) a specialist rehabilitation ward will provide the right setting for managing these matters effectively.
(33) He has Paroxysmal Sympathetic Hyperactivity (PSH) which occurs in patients with severe brain injury and has had episodes that are typical of PSH with generalised dystonia (PAID syndrome). These episodes include groaning, back arching, sweating, rapid heart rate and mildly raised temperature. Episodes reported by staff as "severe extensor spasms and back arching" and observed by Dr Walton are dystonic in nature, have a different pattern of movement to spasticity and do not always respond to anti-spasticity medication. His dystonic episodes are likely to be painful and can have various triggers including problems with his bowels. Some of them include vocalisation which could either signal distress or be due to involvement of laryngeal muscles with laryngeal dystonia. Clearly, these episodes are or would be distressing for family and friends who observe them.
(34) His PAID syndrome is being treated by medication and an important aspect of his further assessment and treatment is the control and reduction of these episodes. Not only are they likely to be painful so long as they continue they are exhausting and so have a significant impact on his ability to show awareness.
(35) The recommendation, prognosis and the best case scenario. I base this on the written joint statement of Dr Mahendran and Dr Walton and their other written and oral evidence.
(36) They both recommend that Mr Briggs should be moved to a specialist rehabilitation unit because after 6 months there it will be possible to give a clearer neurological diagnosis and prognosis. The range of that diagnosis and prognosis and so Mr Briggs' "best case scenario" is important and I return to it.
(37) In her statements and oral evidence Dr Mahendran was at times more optimistic than Dr Walton but very properly she accepted that parts of her statements were in language that gave a misleading impression of the degree of improvement demonstrated by Mr Briggs since his SMART assessment. In her second statement she referred to "medical best interests" and orally she confirmed that her view throughout has been and that it would not be ethical to withdraw CANH from a patient in MCS because of the possibility of improvement or continued improvement. When asked her position in respect of someone who is diagnosed as being in a permanent MCS because it has lasted 5 years she replied that it would not be her decision and she would seek advice.
(38) As the treating consultant on an acute ward this ethical and/or medical best interests approach by Dr Mahendran to the preservation of life is understandable and commendable. I accept the submission made on behalf of the NHS Trust and the WCCG that it is difficult to see how the treating team could have adopted a different approach to that which they have taken since Mr Briggs' accident. I do so because of the difficulty they face in assessing and giving weight to the evidence about what Mr Briggs would have wanted. Hindsight is a wonderful thing and with it I suspect that improvements could have been made by both sides in the communications between the treating team and the family but this would not have altered their rival positions.
(39) The two neuro-rehabilitation consultants agree that any improvement in Mr Briggs' level of consciousness will not be accompanied by a significant increase in his physical abilities. Accordingly, it was common ground that his best case scenario is one in which he will remain severely physically impaired and so dependent on others for all of his physical care. It was not asserted that a possibility that this would not be the case should be recognised and taken into account.
(40) They agree that in assessing improvement in Mr Briggs' awareness the relevant period starts when his intensive care ended in October 2015. They also agree, as is indicated by the 2013 National Clinical Guidelines, that for some patients in MCS a longer period than the six months of rehabilitation they recommend are beneficial to optimise functional abilities. But both gave evidence of what they considered to be Mr Briggs' "best case scenario".
(41) Dr Walton was asked questions with a view to her accepting that it was too early to form and so give a view on Mr Briggs' best case scenario. She did not accept this. Dr Mahendran was not asked questions about this to the same extent but confirmed her agreement with the joint statement describing the best case scenario and said that unless Mr Briggs has the recommended assessment for six months he would not have been given the chance for his maximum potential to be explored. Dr Walton echoed this by saying in her view it was too early to make the decision on whether Mr Briggs' treatment by CANH should be continued.
(42) It was not put to them that their view on the best case scenario was inconsistent with the 2013 National Clinical Guidelines, which are sometimes relied on to support the possibility of emergence from a MCS within 5 years of its onset. It was pointed out to me in submission that the 2013 National Guidelines make it clear that whilst duration is clearly important a number of other factors may also influence the point at which emergence from MCS may be regarded as "highly improbable" which include the patient's general condition and any other comorbidities, the nature and severity of the injury, the level of responsiveness and the observed trajectory of improving responsiveness over a period of months (or, in some cases, years) and that the combination of these factors is likely to have stronger predictive value than a simple time-limit.
(43) The recommendation is based on the proposition that I accept that after 6 months in an improved and appropriate setting a better informed neurological diagnosis and prognosis could be given.
(44) It is however also based on a possibility that at the end of that six months that it will be clearer that Mr Briggs has improved to, or is likely or more likely to improve, to MCS plus or to emerge from MCS. I find that this use of the description was that it was not possible to say one way or the other whether such an improvement would occur. Dr Walton would not put percentages on it.
(45) The best case scenario was formulated and described as a best case scenario, and so it was put forward on the premise that after 6 months on a rehabilitation unit the better informed diagnosis would be that Mr Briggs had emerged from MCS or it was likely that he would do so and the better informed prognosis would be based on the conclusion
(46) Dr Walton was asked questions with a view to her accepting that there was a real possibility that the best case scenario underestimated Mr Briggs' ability to recover and improve and that after rehabilitation the best case scenario may be better. She did not accept this and in my view was clear that it was based on the premise referred to in the last paragraph and on that premise it was realistic.
(47) Unsurprisingly, Dr Walton said that she could not totally exclude the possibility that the best case scenario was an underestimate or an underestimate in some respects. But she gave this evidence in the sense that a better overall scenario was sufficiently unlikely to make it unrealistic and that in respect of some aspects of it (e.g. that Mr Briggs might regain capacity to make complex decisions) not impossible only in the sense that one should never say never.
(48) In the joint statement the best case scenario was stated to be that Mr Briggs may be able in the future to display emotion and answer simple questions about his feelings. This description was clarified in oral evidence. That clarification was to the effect that Mr Briggs may be able in the future to make a choice between whether he wore a red or a blue T-shirt but would not be able to make a choice as to what he wore by reference to, for example, the fact that it would be cold outside and he should wear a jumper.
(49) As to the display of emotion Dr Walton explained that people with brain injuries such as those suffered by Mr Briggs demonstrate pleasure from things such as watching football on the television or listening to music or on social occasions or on seeing people and that, as the result of their brain injury is that they no longer appreciate the impact of their physical and other disabilities and so how they were before their injuries occurred, they do not demonstrate distress or depression and appear content and happy.
(50) It was put to her that there was a possibility of Mr Briggs improving to a state of awareness that enabled him to make his own decisions about his treatment or to take an active part in the decisions made concerning the bringing up of his daughter and family life. These were not accepted save in the sense that one can never say never. Some of this questioning was put in general terms about people with brain damage with the result that the answers did not found a different conclusion on the degree of possibility advanced and accepted by Dr Walton.
(51) I adopt the statement agreed between counsel which describes the best case scenario as follows:
The most realistic best case scenario for Paul Briggs is that he will:
a. Not regain mental capacity to make complex decisionsb. Be happyc. Be able to make simple choices such as what colour t-shirt to weard. Have some pleasurable experiencese. Have some painful experiencesf. Be unlikely to be depressed given his lack of insight, including lack of insight as to his pre-injury life, and pre-injury expressed wishes and feelingsg. Not have any improvement in his physical abilitiesh. Be severely physically impairedi. Need 24 hour care and be dependent on others for all activities of daily livingj. Have some improvement in his medical symptoms with the optimal treatment that would be available, including PSH, dystonia, groaning and contractures.
(52) Dr Walton also gave evidence, which I accept, that if the CANH treatment is not continued Mr Briggs' PSH and dystonia will need careful and expert management if his pain and distress is to be minimised through sedation and other palliative care.
(53) The evidence of the family, friends and colleagues. I discuss this in more detail later.
(54) I put to counsel for the Respondents, and it was accepted by them, that this oral evidence was given with dignity, courage and conspicuous honesty. Mr Briggs' wife and mother were recalled after the medical evidence to answer questions based on Dr Walton's evidence that as a result of his brain damage Mr Briggs was now a different person and in line with other patients Dr Walton has experience of would, on the best case scenario, probably demonstrate pleasure and so happiness and would not be depressed. Neither of them tried to embellish their views and again gave evidence from the heart as to what they thought their husband and son would have wanted. It was clear that although the brain damage he has suffered means that Mr Briggs is now a changed person who will not have insight into his previous wishes, beliefs and values and the impact on him of his brain and other injuries they still regard him as the husband, father and son they loved and love.
(55) I confirmed with counsel that in my view they were right not to cross examine on the basis that any family member, colleague or friend had any motivation (e.g. financial) other than what they thought Mr Briggs would want. It was clear that they did not.
(56) Understandably, they had all reached their common view by routes that differed and so, for example, placed different emphasis on aspects of Mr Briggs' condition and prospects after his accident and had reached their conclusions over different timescales.
(57) The written and in particular the oral evidence of the family, colleagues and friends, the manner in which it was given and their closeness to Mr Briggs convinced me in the sense that I am sure (and so have no reasonable doubt) that if Mr Briggs could make the decision himself having regard to the evidence and argument I have heard about his best case scenario and the rival contentions as to what is now in his best interests he would conclude that he would not give consent to his treatment by CANH.
(58) Many individuals and families would reach different conclusions about what they want themselves and about what their family member would want. At the heart of any application of the MCA is the relevant patient, here Mr Briggs. His family and those who know him best gave evidence with courage, dignity and at considerable emotional cost to themselves that has convinced me of what Mr Briggs would have wanted and would have decided was in his best interests if he had been sitting in my chair during the hearing.
Background law and principles
i) the continued lawfulness of life-sustaining treatment, and
ii) the taking of a positive step (by act or omission) to cause the death of another person.
i) the ability of an individual to refuse life-sustaining treatment, and
ii) the ability of an individual to order a doctor to treat him in a particular way.
i) can choose to have or not to have the medical treatment that is on offer to them,
ii) that choice determines the lawfulness of the treatment, and so
iii) if those patients agree to have it the treatment is lawful, but
iv) if they refuse to have it the treatment is unlawful and cannot be given lawfully however strongly the treating doctors or others may disagree with that patient's choice.
Their determinative choice represents their conclusion on what promotes their own best interests.
i) patients who have capacity, and
ii) the giving or refusal of consent to treatment (including life-sustaining treatment) to patients who do not have the relevant capacity to make the choice themselves.
1 The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
62 Scope of the Act
For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide).
9 Lasting powers of attorney
(1) A lasting power of attorney is a power of attorney under which the donor ('P') confers on the donee (or donees) authority to make decisions about all or any of the following –
(a) P's personal welfare or specified matters concerning P's personal welfare,and(b) P's property and affairs or specified matters concerning P's property andaffairs,and which includes authority to make such decisions in circumstances where P no longer has capacity.
(2) A lasting power of attorney is not created unless –
(a) section 10 is complied with,(b) an instrument conferring authority of the kind mentioned in subsection (1)is made and registered in accordance with Schedule 1, and(c) at the time when P executes the instrument, P has reached 18 and hascapacity to execute it.
(3) An instrument which –
(a) purports to create a lasting power of attorney, but(b) does not comply with this section, section 10 or Schedule 1,confers no authority.
(4) The authority conferred by a lasting power of attorney is subject to –
(a) the provisions of this Act and, in particular, sections 1 (the principles) and4 (best interests), and(b) any conditions or restrictions specified in the instrument.
11 Lasting powers of attorney: restrictions
(1) A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied.
(2) The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question.
(3) The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.
(4) The third is that the act is a proportionate response to –
(a) the likelihood of P's suffering harm, and(b) the seriousness of that harm.
(5) For the purposes of this section, the donee restrains P if he –
(a) uses, or threatens to use, force to secure the doing of an act which P resists,or(b) restricts P's liberty of movement, whether or not P resists,or if he authorises another person to do any of those things.
(7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority –
(a) does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,(b) is subject to sections 24 to 26 (advance decisions to refuse treatment), and(c) extends to giving or refusing consent to the carrying out or continuation ofa treatment by a person providing health care for P.
(8) But subsection (7)(c) –
(a) does not authorise the giving or refusing of consent to the carrying out orcontinuation of life-sustaining treatment, unless the instrument containsexpress provision to that effect, and(b) is subject to any conditions or restrictions in the instrument.
Advance decisions to refuse treatment
24 Advance decisions to refuse treatment: general
(1) 'Advance decision' means a decision made by a person ('P'), after he has
reached 18 and when he has capacity to do so, that if –
(a) at a later time and in such circumstances as he may specify, a specifiedtreatment is proposed to be carried out or continued by a person providinghealth care for him, and(b) at that time he lacks capacity to consent to the carrying out or continuationof the treatment,the specified treatment is not to be carried out or continued.
(2) For the purposes of subsection (1)(a), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms.
(3) P may withdraw or alter an advance decision at any time when he has capacity to do so.
(4) A withdrawal (including a partial withdrawal) need not be in writing.
(5) An alteration of an advance decision need not be in writing (unless section 25(5) applies in relation to the decision resulting from the alteration).
25 Validity and applicability of advance decisions
(1) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time –
(a) valid, and(b) applicable to the treatment.
(2) An advance decision is not valid if P –
(a) has withdrawn the decision at a time when he had capacity to do so,(b) has, under a lasting power of attorney created after the advance decisionwas made, conferred authority on the donee (or, if more than one, any ofthem) to give or refuse consent to the treatment to which the advancedecision relates, or(c) has done anything else clearly inconsistent with the advance decisionremaining his fixed decision.
(3) An advance decision is not applicable to the treatment in question if at the
material time P has capacity to give or refuse consent to it.
(4) An advance decision is not applicable to the treatment in question if –
(a) that treatment is not the treatment specified in the advance decision,(b) any circumstances specified in the advance decision are absent, or(c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which wouldhave affected his decision had he anticipated them.
(5) An advance decision is not applicable to life-sustaining treatment unless –
(a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and(b) the decision and statement comply with subsection (6).
(6) A decision or statement complies with this subsection only if –
(a) it is in writing,(b) it is signed by P or by another person in P's presence and by P's direction,(c) the signature is made or acknowledged by P in the presence of a witness,and(d) the witness signs it, or acknowledges his signature, in P's presence.
(7) The existence of any lasting power of attorney other than one of a description mentioned in subsection (2)(b) does not prevent the advance decision from being regarded as valid and applicable.
26 Effect of advance decisions
(1) If P has made an advance decision which is –
(a) valid, and(b) applicable to a treatment,the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.
(2) A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment.
(3) A person does not incur liability for the consequences of withholding or
withdrawing a treatment from P if, at the time, he reasonably believes that an
advance decision exists which is valid and applicable to the treatment.
(4) The court may make a declaration as to whether an advance decision –
(a) exists;(b) is valid;(c) is applicable to a treatment.
(5) Nothing in an apparent advance decision stops a person –
(a) providing life-sustaining treatment, or(b) doing any act he reasonably believes to be necessary to prevent a seriousdeterioration in P's condition,while a decision as respects any relevant issue is sought from the court.
i) the fact that a patient is making what others think is an unwise decision does not of itself mean that he or she lacks the capacity to make that decision, although the reasons for and against the decision may have an impact on the issue of capacity (see s.1(4) of the MCA),
ii) persons who have capacity can make advance decisions refusing consent to the carrying out or continuation of identified treatment on them in identified circumstances (including life-sustaining treatment) at a time when they lack capacity. A valid advance decision has effect as if the person making it had capacity and made the same decision refusing consent when the question arises whether the treatment should be carried out or continued (see ss. 24 to 26 of the MCA). This is a clear recognition of the right of self-determination and the point that the sanctity of life is not an absolute principle, and
iii) persons who have capacity may make lasting powers of attorney that empower the donee(s) of the power to make a decision on their behalf (see ss. 9 to 12 of the MCA), including decisions to refuse life-sustaining treatment. If they do so, the authority conferred on the donee(s) is subject to the principles of the MCA (in particular its principles and the best interests test) and any conditions or restrictions specified in the instrument (see ss. 9(4) and 11(8)).
i) the weight to be given to "conditions or restrictions specified in the instrument" and the application of the principles of the MCA and the bests interests test, or
ii) what is required to found a "reasonable belief" for the purposes of s. 4(9), or
iii) the extent of the restriction relating to restraining P (as defined) having regard to the approach taken in Cheshire West to what constitutes a deprivation of liberty (which, save in defined circumstances is not authorised by the MCA – see s. 4A).
--- it does seem to me that it is right that the Act should be construed in a way which gives as much flexibility to donors to set out how they wish their affairs to be dealt with as possible, the Act being intended to give autonomy to those who are in a position where they can foresee that they may in the future lack capacity to specify who it is that they wish to act for their affairs
4 Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of –
(a) the person's age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant
circumstances and, in particular, take the following steps.
(3) He must consider –
(a) whether it is likely that the person will at some time have capacity inrelation to the matter in question, and(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable –
(a) the person's past and present wishes and feelings (and, in particular, anyrelevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if hehad capacity, and(c) the other factors that he would be likely to consider if he were able to doso.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –
(a) anyone named by the person as someone to be consulted on the matter inquestion or on matters of that kind,(b) anyone engaged in caring for the person or interested in his welfare,(c) any donee of a lasting power of attorney granted by the person, and(d) any deputy appointed for the person by the court,as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8) The duties imposed by subsections (1) to (7) also apply in relation to the
exercise of any powers which –
(a) are exercisable under a lasting power of attorney, or(b) are exercisable by a person under this Act where he reasonably believesthat another person lacks capacity.
(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) 'Life-sustaining treatment' means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11) 'Relevant circumstances' are those –
(a) of which the person making the determination is aware, and(b) which it would be reasonable to regard as relevant.
5 Acts in connection with care or treatment
(1) If a person ('D') does an act in connection with the care or treatment of another person ('P'), the act is one to which this section applies if –
(a) before doing the act, D takes reasonable steps to establish whether P lackscapacity in relation to the matter in question, and(b) when doing the act, D reasonably believes –(i) that P lacks capacity in relation to the matter, and(ii) that it will be in P's best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have
incurred if P –
(a) had had capacity to consent in relation to the matter, and(b) had consented to D's doing the act.
(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
(4) Nothing in this section affects the operation of sections 24 to 26 (advance
decisions to refuse treatment).
6 Section 5 acts: limitations
(1) If D does an act that is intended to restrain P, it is not an act to which section 5
applies unless two further conditions are satisfied.
(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.
(3) The second is that the act is a proportionate response to –
(a) the likelihood of P's suffering harm, and(b) the seriousness of that harm.
(4) For the purposes of this section D restrains P if he –
(a) uses, or threatens to use, force to secure the doing of an act which P resists,or(b) restricts P's liberty of movement, whether or not P resists.
(6) Section 5 does not authorise a person to do an act which conflicts with a
decision made, within the scope of his authority and in accordance with this Part, by –
(a) a donee of a lasting power of attorney granted by P, or(b) a deputy appointed for P by the court.
(7) But nothing in subsection (6) stops a person –
(a) providing life-sustaining treatment, or(b) doing any act which he reasonably believes to be necessary to prevent aserious deterioration in P's condition,
while a decision as respects any relevant issue is sought from the court.
General powers of the court and appointment of deputies
15 Power to make declarations
(1) The court may make declarations as to –
(a) whether a person has or lacks capacity to make a decision specified in thedeclaration;(b) whether a person has or lacks capacity to make decisions on such mattersas are described in the declaration;(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) 'Act' includes an omission and a course of conduct.
16 Powers to make decisions and appoint deputies: general
(1) This section applies if a person ('P') lacks capacity in relation to a matter or matters concerning –
(a) P's personal welfare, or(b) P's property and affairs.
(2) The court may –
(a) by making an order, make the decision or decisions on P's behalf inrelation to the matter or matters, or(b) appoint a person (a 'deputy') to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.
i) a person (D) can make decisions as to the giving and the withdrawal of treatment to a person who lacks capacity (P) if D reasonably believes that it will be in P's best interests for the act (namely the carrying out or continuation of treatment) to be done, and
ii) D is protected from any liability for that act that he would not have incurred if P had had capacity and had consented to the act (and so the giving or continuation of treatment - see s. 5 of the MCA).
The making of a best interests decision by a decision maker (including the court) under the MCA in respect of life-sustaining treatment
i) Mr Briggs' past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
ii) Mr Briggs' beliefs and values that would be likely to influence his decision if he had capacity, and
iii) the other factors that Mr Briggs would be likely to consider if he were able to do so.
i) what he or she used to wish and feel and how they would have applied their beliefs, values and other factors they thought were relevant,
ii) what he or she now wishes and feels or how they would now take their past beliefs and values and other relevant factors into account if they were able to do so.
i) found or are likely to found the result that his demeanour, behaviour and limited communication demonstrate pleasure, happiness or contentment and do not demonstrate distress or depression, namely his brain damage and its impact on what he appreciates and processes, also means
ii) that he may not be able to formulate wishes and
iii) have the result that he cannot identify and weigh beliefs, values and factors he would take into account now if he had capacity and so determine and communicate what his wishes are now having regard to them.
i) issues relating to life-sustaining treatment are intensely personal,
ii) a fundamental principle is that a person with capacity can make decisions that determine what is to happen to them in the future and so "an earlier self can bind a future and different self" with the result that the principle of self-determination outweighs the sanctity of life, and so
iii) if persons who do not have the relevant capacity (Ps) are treated as individuals, just as in the case of individuals who consider whether or not to make an advance decision concerning the giving of life-sustaining treatment based on their own predictions and assessments, in the circumstances that exist for them some Ps would, if they were able to, consent to life-sustaining treatment and others would not.
1. --- [The MCA] provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned.
18. --- [The MCA] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity ---
24. --- This is, as the Explanatory Notes to the Bill made clear, still a "best interests" rather than a "substituted judgement" test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie. To take a simple example, cannot be in the best interest to give the patient food which he does not like when other equally nutritious food is available.
26. Beyond this emphasis on the need to see the patient as an individual, with his own values, likes and dislikes, and consider his interests in a holistic way, the Act gives no further guidance. ---
39. The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view on what his attitude would be.
55. In my judgment it is the inescapable conclusion from the stress laid on these matters in the 2005 Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P's views, and to encourage P to be involved in the decision-making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself?
56. The 2005 Act does not, of course, say that P's wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P's "best interests". However, by giving such prominence to the above matters, the Act does, in my judgment, recognise that having his views and wishes taken into account and respected is a very significant aspect of P's best interests. Due regard should therefore be paid to this recognition when doing the weighing exercise of determining what is in P's best interest in all the relevant circumstances, including those wishes.
i) P's history may show that he or she has made a series of damaging investment or lifestyle decisions and so although if they had capacity they would be likely to do so again the court (or other decision maker) can conclude that it would not be in their best interests for such a decision to be made on their behalf,
ii) it is not uncommon that what P would have wanted and would now want is not an available option,
iii) it is not uncommon that very understandable expressions of present wishes and feelings "I want to go home" would not be made if P was able to weigh the existing competing factors by reference to P's beliefs and values, and in any event are not in P's best interests, although current expressions of wish can inform which of available alternatives has the best chance of being successfully implemented,
iv) the point that an individual and a court cannot compel a doctor to give certain types of treatment is a factor in cases relating to life-sustaining and other treatment (as an individual can only exercise his or her right of self-determination between available choices), and
v) the existence of clinical conditions, physical illness and the types of life-sustaining treatment (e.g. resuscitation or treatment in intensive care) and the pain or loss of dignity they cause can be highly relevant factors in reaching a conclusion contrary to the evidence of P's family that P would have wished treatment to continue (see for example NHS Trust v VT  COPLR 44, a decision of Hayden J).
i) the decision maker and so a judge must be wary of giving weight to what he thinks is prudent or what he would want for himself or his family, or what he thinks most people would or should want, and
ii) if the decision that P would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.
35. The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive. As Sir Thomas Bingham MR said in the Court of Appeal in Bland's case  AC 789, 808, "A profound respect for the sanctity of human life is embedded in our law and our moral philosophy". Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interest to receive life-sustaining treatment.
i) firstly make findings on the evidence relating to the matters set out in s. 4(6) on the attitude and approach of the relevant individual when he or she had capacity to the fundamental and deeply personal principles now at stake relating to the giving or continuance of life-sustaining treatment, and then
ii) apply those findings to the relevant circumstances in which the best interests decision now has to be made on whether life-sustaining treatment should be given or continue to be given to that person, to determine what decision he or she would have made if they now had capacity and so, in exercise of their right of self-determination was able to make the decision.
228. --- it does not follow from the fact that she indicated that she would not wish to continue living in a vegetative state that she would have wished to have ANH withdrawn when she was conscious, albeit minimally. In addition, I have to take into account the fact that M has lived in her current minimally conscious state for many years. We have no way of knowing how she now feels about her current life. In those circumstances, the court must be particularly cautious about attaching significant weight to statements she made before her collapse.
229. --- But the crucial distinction between an advance decision that meets the criteria required by sections 24 to 26 of the 2005 Act and other expressions of wishes and feelings is that an advance decision must address specifically the circumstances in which it will be binding and is made in the knowledge that it will be decisive if those circumstances arise. In other words, an adult who makes an advance decision knows that it will be decisive in the event that he or she becomes incapacitated and is unable to communicate their current wishes and feelings.
230. I accept without qualification that B and S are accurately relying the various statements made by M in the past. I accept, therefore, that when her grandmother and father were in declining health and moved to live in nursing homes, M said on more than one occasion words to the effect that she would not wish to live like that, that she would not wish to be dependent on others, and that she "wanted to go quickly close quote. I also accept the evidence that, when reports about Tony Bland appeared on the television, M express views to the effect that it will be better to allow him to die. But, as conceded on behalf of the applicant, there is no evidence that M ever specifically considered the question of withdrawal of ANH, or ever considered the question whether she would wish such treatment to be withdrawn if in a minimally conscious state. Furthermore, even if M did specifically consider those questions, there is no way of knowing her current views, having lived in that state for over eight years. Given the importance of the sanctity of life, and the fatal consequences of withdrawing treatment, and the absence of an advance decision that complied with the requirements previously specified by the common law and now under statute, it would be in my judgement be wrong to attach significant weight to those statements made prior to her collapse.
Does section 4(5) of the MCA prevent me making a welfare order and declarations based on a care and treatment plan that Mr Briggs' CANH is not to be continued.
i) the question for the court is: Whether it is in Mr Briggs' best interests for it to give consent to his treatment by CANH?, and
ii) in assessing the views, wishes, feelings and motivation of any relevant person in the application of the best interests test (and so in determining what Mr Briggs' would have wanted and decided for himself if he was able to do so) the court should do so by reference to that question and the analysis and consequences of the answer to it that has been explained in the Bland, Aintree Hospitals and other cases.
That question and the analysis and consequences of the answer to it address all types of life-sustaining treatment and so, for example, they are not limited to treatment that can be said to be useless, pointless or over burdensome because of the patient's clinical position or otherwise.
The medical evidence
The evidence of the family, colleagues and friends
Why am I convinced that Mr Briggs' family are right?
i) if on that premise I conclude that Mr Briggs would not have consented to the continuation of his CANH treatment I do not have to examine his attitude to a less good best case scenario, and
ii) that premise identifies a life that has value to which the strong presumption that it should be preserved plainly applies.
Standing back - Has the default or starting position that the strong presumption that a person's best interests are best served by preserving their life been rebutted?
i) the very strong presumption in favour of preserving life, or
ii) the great weight to be attached to what Mr Briggs as an individual would have decided himself if he had the capacity and so was able to do so.