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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169 (31 July 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1169.html Cite as: [2018] Fam 63, [2017] WLR(D) 535, [2018] 2 WLR 152, [2017] EWCA Civ 1169, [2017] COPLR 370, [2018] 2 All ER 990, [2017] CP Rep 45, (2017) 158 BMLR 88 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Mr Justice Charles
[2016] EWCOP 48
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
LADY JUSTICE KING
and
LORD JUSTICE BURNETT
____________________
(1) Director of Legal Aid Casework (2) The Secretaries of State for Health and for Justice (3) The Official Solicitor |
Appellants |
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- and - |
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Briggs |
Respondent |
____________________
Joanne Clement (instructed by Government Legal Department) for the 2nd Appellant
Vikram Sachdeva QC and Annabel Lee (instructed by the Official Solicitor) for the 3rd Appellant
Jenni Richards QC and Victoria Butler-Cole (instructed by Irwin Mitchell LLP) for the Respondent
Hearing dates : 3, 4 July 2017
____________________
Crown Copyright ©
Lady Justice King :
Background
". . . whilst framed under as an application under S21A of the Mental Capacity Act, the issue at the heart of this case is one of serious medical treatment. The applicant recognises that this is an unusual approach to take in a case concerning serious medical treatment and wishes to make it clear from the outset that the reason she has elected to take this approach is one of funding."
Historical Context
"(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."
Section 15
"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 the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as 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.
Section 16 :
"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 in relation 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)"
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
"5.36…. where there is any doubt about the patient's best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life-sustaining treatment is in the patient's best interests."
"PD9E para 5(a):
"Matters which should be brought to the court -
5. Cases involving any of the following decisions should be regarded as serious medical treatment for the purpose of the Rules and this practice direction, and should be brought to the court:
(a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state;"
Amendment to the Mental Capacity Act 2005
"Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)…
(b)…
(c)…
(d)…
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
1 . . .
2 . . .
3 . . .
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
"[124] … protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Art.5(1) of the Convention. On this basis, the Court finds that there has been a violation of Art.5(1)"
"120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act is, in the Court's view, significant.
In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The nomination of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.
121. As a result of the lack of procedural regulation and limits, the Court observes that the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left "effective and unqualified control" in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, the very purpose of procedural safeguards is to protect individuals against any "misjudgments and professional lapses" (Lord Steyn, at paragraph 49 above)"
"An authorisation does not entitle the hospital or care home to do anything other than for the purpose of authorisation. The reason for this provision is that the authorisation procedure is to ensure the lawfulness of deprivation of liberty. It is not concerned with the provisions of care or treatment to people who lack capacity to consent: this is governed by the existing provisions of the MCA except where the provisions of mental health legislation apply."
"4A Restriction on deprivation of liberty
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to—
(a) the following provisions of this section, and
(b) section 4B.
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)"
[A new s.4B permits the deprivation of liberty of P whilst a decision in relation to life sustaining treatment is sought from the court].
Schedule A1 Mental Capacity Act 2005
"detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty."
Although the managing authority of the hospital or care home concerned may deprive P by detaining him in such a way (para.2) it cannot itself make the necessary standard authorisation. Rather, by Schedule A1 para.24 (1) and (3), the managing authority (that is to say the hospital/care home concerned (para.176-178 of Schedule A1)) has to request a standard authorisation once the relevant person is accommodated in the hospital or care home. Only the 'supervisory body' (that is to say the local authority) may give the standard authorisation and then only if the managing authority have requested it. (paragraphs 180-182 of Sch.A1).
"(1) These are the qualifying requirements referred to in this Schedule—
(a) the age requirement;
(b) the mental health requirement;
(c) the mental capacity requirement;
(d) the best interests requirement;
(e) the eligibility requirement;
(f) the no refusals requirement.
(2) Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.
(A 'detained resident' is defined at para.6 as "a person detained in a hospital or care home- for the purposes of being given care or treatment- in circumstances which amount to deprivation of the person's liberty")
The Best Interests Requirement
"16(1) The relevant person meets the best interests requirement if all of the following conditions are met.
(2) The first condition is that the relevant person is, or is to be, a detained resident.
(3) The second condition is that it is in the best interests of the relevant person for him to be a detained resident.
(4) The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.
(5) The fourth condition is that it is a proportionate response to—
(a) the likelihood of the relevant person suffering harm, and
(b) the seriousness of that harm,
for him to be a detained resident."
It should be noted that each of conditions 2 – 5 (best interests, necessity and proportionality) are by reference to P being a 'detained resident'.
"5.10 A deprivation of liberty authorisation – whether urgent or standard – relates solely to the issue of deprivation of liberty. It does not give authority to treat people, nor to do anything else that would normally require their consent. The arrangements for providing care and treatment to people in respect of whom a deprivation of liberty authorisation is in force are subject to the wider provisions of the Mental Capacity Act 2005"
"The purpose of the best interests assessment is to establish, firstly, whether deprivation of liberty is occurring or is going to occur and, if so, whether:
(i) it is in the best interests of the relevant person to be deprived of liberty
(ii) it is necessary for them to be deprived of liberty in order to prevent harm to themselves, and
(iii) deprivation of liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm."
Paragraph 4.61, having said that Section 4 of the Act applies equally to deprivation of liberty, identifies a number of additional factors to be considered 'when it comes to best interests around deprivation of liberty'.
"4.74 The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues, issues relevant to the person's culture or other major issues related to the deprivation of liberty, which – if not dealt with – would mean that the deprivation of liberty would cease to be in the person's best interests. The best interests assessor may also recommend conditions in order to work towards avoiding deprivation of liberty in future. But it is not the best interests assessor's role to specify conditions that do not directly relate to the issue of deprivation of liberty."
The statutory DOLS code therefore says in terms that the assessor is to make conditions in relation only to the deprivation of liberty itself.
(1) This section applies if either of the following has been given under Schedule A1—
(a) a standard authorisation;
(b) an urgent authorisation.
(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
(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.
(3) If the court determines any question under subsection (2), the court may make an order—
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation"
The Judgment.
"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."
". . . the determination of that issue by the COP founds and so is directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings above have been issued under s.21A.)
"[87] The DOLS. In my view on a literal construction:
(i) The inclusion of the best interests condition in addition to the necessity and the proportionality conditions within the definition of the best interests requirement, and thereby
(ii) The inclusion of a best interests test in the definition to which ss.1 and 4 of the MCA apply
clearly favours the conclusion that the DOLS go beyond what is required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to MCA for a person who lacks capacity to make a decision himself."
"The power to vary enables the COP to change any terms of the standard authorisation and so the arguments advanced by reference to what the authorisation presently says (and in particular the understandable width of those terms and the care used in setting them) do not mean that the COP cannot vary them. For example, the COP:
i) could vary the stated purpose from treatment leading to a transfer to a rehabilitation unit to one leading to a transfer to a hospice, or,
ii) could vary to add conditions about plans to be made about Mr Briggs' needs."
Counsels' Submissions
Statutory interpretation
"8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.
9. There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking"
"the pendulum has swung towards purposive methods of construction…. Nowadays the shift towards purposive interpretation is in not in doubt"
"[5] The question is whether in aid of the interpretation of a statute the court may take into account the Explanatory Notes and, if so, to what extent. The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen. In regard to contractual interpretation this was made clear by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386, and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995-996. Moreover, in his important judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913, Lord Hoffmann made crystal clear that an ambiguity need not be established before the surrounding circumstances may be taken into account. The same applies to statutory construction"
and
"Again, there is no need to establish an ambiguity before taking into account the objective circumstances to which the language relates. Applied to the subject under consideration the result is as follows. Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible:"
"However, if there is a collision between a literal interpretation of an enactment and the contextual material with the consequence that the literal interpretation "is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief…", then the enactment should be construed in the light of the purpose as evident from the historical context and mischief (R v Z per Lord Carswell)."
i) The historical context: it is common ground that the section was introduced to plug the Bournewood Gap. It is equally undisputed that Article 5 is not concerned with the suitability of treatment or conditions of detention.
ii) Prior to the enactment of section 21A there was within the Act (see [16] above) a complete code in respect of the medical treatment and the personal welfare of those who lack capacity.
iii) The Explanatory Note is unequivocal: 'The reason for this provision is that the authorisation procedure is to ensure the lawfulness of the deprivation of liberty. It is not directly concerned with the provision of care or treatment of people who lack capacity to consent'.
iv) The Code of Practice: 5.10: A deprivation of liberty authorisation "relates solely to the issue of deprivation of liberty. It does not give authority to treat people…. Care and treatment to people in respect of whom a deprivation of liberty authorisation is in force are subject to the wider provisions of the Mental Capacity Act."
v) The best interests qualifying requirement at para.16 applies each of the four conditions to a 'detained resident'
(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"
"I acknowledge 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 of liberty under s5 MCA. But 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'
Update in relation to Standard Authorisation in relation to the seriously ill
"On this basis, any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1) (as it was said in Austin) "so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose". In my judgment, what these qualifications mean is in essence that the acute condition of the patient must not have been the result of action which the state wrongly chose to inflict on him and that the administration of the treatment cannot in general include treatment that could not properly be given to a person of sound mind in her condition according to the medical evidence.
"[99] In the case of a patient in intensive care, the true cause of their not being free to leave is their underlying illness, which was the reason why they were taken into intensive care. The person may have been rendered unresponsive by reason of treatment they have received, such as sedation, but, while that treatment is an immediate cause, it is not the real cause. The real cause is their illness, a matter for which (in the absent of special circumstances) the state is not responsible. It is quite different in the case of living arrangements for a person of unsound mind. If she is prevented from leaving her placement it is because of steps taken to prevent her because of her mental disorder. Cheshire West is a long way from this case on its facts and that, in my judgment, indicates that it is distinguishable from the situation of a patient in intensive care".
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.
"[94] What may amount to a deprivation of liberty is a fact sensitive issue which must be determined in each individual case. The 'acid test' for the determination of a deprivation of liberty was propounded by Lady Hale in P v Cheshire West and Others [2014] UKSC 19 at paragraph 49.
[95] The 'acid test' identifies two elements of a deprivation of P's liberty:
(i) she is subject to continuous supervision and control; and
(ii) she is not free to leave.
[96] It will commonly be the case that when at the acute hospital P:
(i) will have obstetric and midwifery staff constantly present throughout her labour and delivery;
(ii) will be under the continuous control of obstetric and midwifery staff who, because she lacks capacity to make decisions about her medical case, will take decisions on her behalf in her best interests;
(iii) will often not be permitted to leave the delivery suite.
Those factors may, when applying the acid test, lead to a conclusion that P is or will suffer a deprivation of her liberty when at the acute hospital. If the Trusts are to deprive P of her liberty, they have a duty not to do so unlawfully: s6 HRA 1998.
[97] The Trusts must, therefore, plan how P is to receive obstetric care in sufficient detail to identify whether there is potential for a deprivation of liberty to arise. When trusts identify there is a real risk that P will suffer an additional deprivation of her residual liberty during transfer to and from the acute hospital and/or when present at the acute hospital, the Trusts must take steps to ensure the deprivation of liberty is authorised in accordance with the law."
Conclusion
Lord Justice Burnett :
Sir Brian Leveson P: