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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: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1169.html
Cite as: [2018] 2 All ER 990, [2017] EWCA Civ 1169, [2018] Fam 63, [2017] CP Rep 45, [2017] COPLR 370, [2017] WLR(D) 535, [2018] 2 WLR 152, (2017) 158 BMLR 88

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Neutral Citation Number: [2017] EWCA Civ 1169
Case No: B4/2016/4637, 4639, 4680

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Mr Justice Charles
[2016] EWCOP 48

Royal Courts of Justice
Strand, London, WC2A 2LL
31/07/2017

B e f o r e :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
LADY JUSTICE KING
and
LORD JUSTICE BURNETT

____________________

Between:
(1) Director of Legal Aid Casework
(2) The Secretaries of State for Health and for Justice
(3) The Official Solicitor
Appellants
- and -

Briggs
Respondent

____________________

Paul Nicholls QC (instructed by Legal Aid Agency) for the 1st Appellant
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lady Justice King :

  1. This is an appeal from an order of Charles J, sitting in the Court of Protection, dated 24 November 2016. By his judgment, the judge determined a preliminary issue: namely, whether proceedings issued by Mrs Lindsey Briggs (the respondent) were properly brought under s.21A of the Mental Capacity Act 2005 ("the MCA").
  2. Background

  3. The issue arose in the context of two concurrent sets of proceedings brought before the Court of Protection. Both applications concerned Mr Briggs, who was involved in a road traffic accident on 3 July 2015, from which he sustained serious injuries, including a traumatic brain injury. Mr Briggs did not recover and at the time of the hearing before Charles J, he was in a minimally conscious state. The two sets of proceedings were initiated as Mrs Briggs, together with the wider family, were unable to agree with the treating team at the hospital caring for Mr Briggs as to whether, in his minimally conscious state, it was in his best interests to continue to be given clinically assisted nutrition and hydration ("CANH").
  4. The NHS Trust therefore brought the matter before the court so that a judge could decide whether Mr Briggs' best interests now required, as was submitted by his wife, that CANH be withdrawn. The application was made pursuant to s.16 MCA and in compliance with Practice Direction 9E MCA, which governs the procedure in cases of 'serious medical treatment'.
  5. The respondent, for her part, brought proceedings under s.21A of the MCA; she asked the court to determine: that it was not in Mr Briggs' best interests for him to be provided with life sustaining treatment, that it was not in his best interests for him to be a detained resident for the purposes of receiving such treatment and that it was not appropriate for him to be deprived of his liberty for this purpose.
  6. The respondent issued her application on the standard "Deprivation of Liberty Application Form". In the statement of facts and grounds accompanying her application she said:
  7. ". . . 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."
  8. Non-means tested legal aid is available in proceedings in the Court of Protection under s.21A MCA by virtue of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480, Regulation 5(1)(g). No such non-means tested legal aid is available to an applicant making a conventional "serious medical treatment" application under s.16 MCA in accordance with the PD9E. In those circumstances the respondent invited the court to declare that the proceedings were properly brought under s.21A of the MCA.
  9. Charles J joined the Secretaries of States for Health and for Justice, together with the Director of Legal Aid Casework, as parties to the claim and a preliminary hearing was listed to determine whether the respondent's claim was properly brought under s.21A MCA. Charles J resolved the preliminary issue by holding that the proceedings issued by the respondent were properly brought under s.21A. He said that the language of s.21A was broad enough to include consideration of serious medical treatment issues and, as a consequence, the respondent was entitled to bring proceedings under s.21A. Although the judge considered the legal aid position at some length in his judgment, he said that whether or not the respondent was eligible for non-means tested funding through legal aid was irrelevant to the issue of statutory interpretation he had to resolve.
  10. Having held that the proceedings were appropriately brought under s.21A MCA the judge proceeded to hear the main applications, the respondent having the benefit of leading and junior counsel by virtue of her legal aid certificate. On 20 December 2016 the judge held that it was not in Mr Briggs' best interests to continue to receive CANH. The decision he made was reflected in a number of declarations and orders made by him under ss.4A, 15, 16, 17 and 21A.
  11. Permission to appeal was granted by McFarlane LJ on 20 January 2017 but shortly thereafter Mr Briggs died. A case management hearing took place on 30 March 2017, when the Court of Appeal directed that the appeal should proceed to a full hearing, notwithstanding the death of Mr Briggs.
  12. Whilst it will undoubtedly be regarded by many as perturbing that non-means-tested legal aid is unavailable to people making an application to the court in circumstances where a dispute has arisen in respect of the withdrawal of life sustaining treatment, the case before this court is not about legal aid, but solely about the scope of s.21A MCA, a section which was a later addition to the MCA as originally drafted.
  13. In order to put the submissions of counsel in their proper context, it is necessary to consider the way the MCA has developed and why.
  14. Historical Context

  15. The MCA was a consolidating Act bringing together the common law by way of a composite code. Section 1 sets out the principles which underpin the Act. In particular, s.1(5) of the Act sets out the "best interests" principle:
  16. "(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."
  17. Section 4 of the Act thereafter sets out the proper approach to the 'best interest' principle including the requirement that the person determining the patient (P)'s best interests should take into account 'all the relevant circumstances' (s.4(2)) and consider, as far as is reasonably ascertainable, P's 'past and present wishes and feelings' (s.4(6)(a)).
  18. Section 5 is the critical empowering section allowing a person (in the present case the clinical team) to do an act in connection with the care or treatment of a person who lacks capacity in their best interests (s.5(1)) and granting them immunity from liability in relation to the same (s.5(2)).
  19. In other words, s.5 provides for the care and treatment of incapacitated adults in their best interests and is the umbrella provision under which, day in and day out, throughout England and Wales people suffering from mental incapacity are given the medical treatment and care they need and to which they would otherwise have had to consent.
  20. As originally enacted (and continuing), where a dispute arises taking the matter outside s.5, wide-ranging interlocking provisions in ss.15, 16 & 17 MCA give the court jurisdiction to make personal welfare decisions, declarations and orders in respect of a person (P) who lacks capacity:
  21. 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)"
  22. Section 17 then sets out the court's powers in relation to questions of personal welfare which are determined under s.16 MCA which include where a person is to live, what contact they should or should not have with certain people and:
  23. (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
  24. It follows that the court can, subject to the best interests principles (s.16((3)) give or refuse consent to the carrying out or continuation of treatment by a person providing health care for P (s.17(d)).
  25. In addition to the statute itself, a Mental Capacity Code of Practice (the Code of Practice) came into effect on 23 April 2007. By s.42 of the Act the Lord Chancellor 'must prepare and issue' codes of practice inter alia, for "the guidance of persons acting in connection with the care or treatment of another person" (s.42(1)(b)). The Lord Chancellor, having fulfilled the obligation to issue the Code of Practice, it is thereafter the "duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity" (s.42(4)).
  26. Under the heading 'How someone's best interests should be worked out when making decisions about life-sustaining treatment', the Code of Practice sets out between para. 5.29 - 5.36 the proper approach to reaching such decisions. In relation to the withdrawal of treatment it provides that:
  27. "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."
  28. The MCA is also supported by the Court of Protection Rules 2007 (the Rules) and accompanying Practice Directions. The Rules were made by the President of the Family Division as the nominee of the Lord Chief Justice. Rule 71 provides that 'a practice direction may make additional or different provisions in relation to specified applications'.
  29. By this rule it is recognised that certain applications made to the Court of Protection will require a bespoke procedure including the provision to the court of specific information necessary in order for it properly to consider the application in question. Applications in relation to serious medical treatment are one such category and Practice Direction 9E deals specifically with all applications relating to 'serious medical treatment':
  30. "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;"
  31. Whilst the Practice Direction deals with a number of procedural matters including allocation (to a High Court Judge) it does not specify that the application is to be made under s.15 or s.16 (although this was the only route available under the MCA at the time the Rules came into force on 1 October 2007).
  32. At first glance there may appear to be a tension between the Code of Practice which brings matters before the court where "there is a doubt" as to the best interests of P and the Practice Direction which appears to say that all cases of withholding or withdrawing treatment in relation to a minimally conscious person should be brought before the court.
  33. The Code of Practice, unlike the Practice Direction, is by virtue of s.42 MCA a statutory code with the statutory duty imposed upon those exercising formal powers or duties under the Act to "have regard" to its provisions.
  34. Insofar as the Code and the Practice Direction appear to be inconsistent the one with the other, it is the Code which must therefore take precedence. In reality virtually all of these traumatic decisions are made by agreement between the families and the treating teams of the person involved. To suggest that every case should go before a judge (even where all concerned are in accord as to what was in the best interests of the patient) would not only be an unnecessary pressure on the overstretched resources of the NHS Trusts and add to the burden on the courts but, most importantly, would greatly add to the strain on the families having to face these unimaginably distressing decisions. In my judgment, the Practice Direction provides valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court.
  35. In summary therefore, the Act, together with the Code and Rules of Practice as originally drafted, provided, through the conduit of s.16, a route whereby a court could determine, in cases where a dispute arose (or there was for any other reason a "doubt" as to what is in P's best interests), whether it was in the best interests of a P to withdraw CANH.
  36. It is the respondent's case that there is now a second route by which the court has the power to make such a decision, albeit one which applies only where a patient has been deprived of their liberty and that deprivation has been authorised by way of a standard authorisation (see para [43] below). It is the respondent's case that this alternative route is by way of an application under s.21A, a provision which was added to the Act by the Mental Health Act 2007 Sch.9(1) para.2 ( April 1 2009).
  37. Amendment to the Mental Capacity Act 2005

  38. It became necessary to amend the MCA following a finding by the ECtHR that the United Kingdom was in breach of Article 5 of the ECHR in relation to the detention of incapacitated people.
  39. Article 5 of the European Convention on Human Rights provides:
  40. "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".
  41. In HL v United Kingdom (2005) 40 EHRR 32, the ECtHR held that an autistic man who had been informally admitted to Bournewood Hospital but who lacked the capacity to consent to or refuse the admission, had been deprived of his liberty. The court found that the (undoubted) absence of procedural safeguards failed to:
  42. "[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)"
  43. In relation to the absence in domestic law of "procedural rules by which the admission and detention of compliant incapacitated persons is conducted" the Court said:
  44. "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)"
  45. This gap, identified by the ECtHR in regard to procedural rules governing the detention of an incapacitated person, is commonly described as the Bournewood Gap. The Bournewood Gap was subsequently "filled" in order to comply with Article 5(1) and 5(4) ECtHR by the making of amendments to the MCA. It is accepted by all the parties, and by the judge, that the amendments with which this court is concerned were introduced in order to fill the Bournewood Gap.
  46. The court has been provided with the Explanatory Notes prepared by the Department of Health and the Ministry of Justice which accompany the amendments. The notes do not form part of the Act but are intended to assist in an understanding of the new provisions. Paragraph 197 says:
  47. "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."
  48. The contemporaneous Explanatory Note therefore appears to anticipate that the new provisions will relate only to ensuring that the deprivation of liberty is itself lawful and that disputes as to care and treatment will continue to be governed by the existing provisions, namely s.15 – s.17 MCA. It is the Respondent's case that this is a misinterpretation of the new provisions which, she submits, on the properly construed wording of the new provisions, and in particular s.21A, go significantly further than suggested in the Explanatory Note and the words of the section as drafted allow the court to make decisions in relation to serious medical treatment as part of its consideration as to whether a deprivation of liberty is in the best interests of P.
  49. In order to decide whether this is the case, it will be necessary to consider in a little detail the structure of the new provisions in relation to deprivation of liberty. In general terms however, there is now a detailed structure for seeking an authorisation of a deprivation of liberty for P who lacks capacity and is in a hospital for the purposes of care and treatment. The authorisation procedure is found in a new Sch A1: Hospital and Care Home Residents: Deprivation of Liberty. The schedule covers the entire authorisation process building in all the procedural protections lacking as a consequence of the Bournewood Gap.
  50. Sch A1 is the procedure now followed throughout the country in hospitals and care homes. As in serious medical treatment cases, there is mostly agreement between the families of P, and the person authorising the deprivation of liberty that the deprivation of liberty in question is in P's best interests. Where there is a dispute a new s.21A allows the court to vary the terms of, or to terminate, the authorisation.
  51. Miss Richards QC on behalf of the Respondent argues that the breadth and extent of the enquiries which have to be made under Sch A1 in the best interests of P, prior to the deprivation of liberty being authorised, is such that conditions can be attached to the authorisations which go so far as to determine issues such as continued CANH as part of the authorisation. That being the case, she submits, if, rather than being dealt with purely under Sch.A1, the matter is brought before the court under s.21A, the court can as a consequence of the wide wording of that section make, for example, the withdrawal of CANH, a condition of the continued deprivation of the liberty of P. The judge was, Miss Richards says, therefore right in finding that s.21A is an appropriate route by which to ask a court to determine an issue in relation to serious medical treatment.
  52. In order properly to analyse whether this submission is made out or whether the judge may have fallen into error in reaching the conclusion he did, it becomes necessary to look at both the amendments in the main body of the MCA and the scope of the authorisation process.
  53. The starting point is the new s.4A MCA 2005:
  54. "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].

  55. By s.64(5) of the MCA, "deprivation of liberty" has the same meaning for the purposes of the Act as in Article 5(1) of the Human Rights Convention
  56. Consideration as to how s.4A(4) (orders made under s.16 of the Act) works in practice has been given in paragraphs [16] – [20] above. Section 4A(5) which allows D to deprive P of his liberty if authorised under Schedule A1, refers to the new provisions and identifies, for the first time, in what circumstances and how, without recourse to a court, D may authorise the deprivation of P's liberty.
  57. Approval of a deprivation of liberty under Sch.A1 is by way of either a "standard authorisation" or an "urgent authorisation" "Standard Authorisation" means an authorisation given under Part 4 Sch.A1 (Sch. A1 para 8). Mr Briggs was subject to a standard authorisation.
  58. Schedule A1 Mental Capacity Act 2005

  59. Before a person can be authorised to be deprived of his liberty P must (para.1(2)) be:
  60. "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).

  61. Before the requested standard authorisation can be granted by the supervisory body, they have to be satisfied that six qualifying requirements set out in para.12 have been met::
  62. "(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

  63. Each of the qualifying requirements is dealt with separately within Sch.A1. Sch. A1 para.16 deals with the "best interests" requirement and has been the focus of counsels' submissions:
  64. "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'.
  65. In order to satisfy the third condition, namely that it is in the best interests of the relevant person for P to be a detained resident, a best interests assessment must be carried out by an assessor (Paras.33(2)(d). A best interests assessment is simply defined as "an assessment of whether the relevant person meets the best interests requirement".
  66. Pursuant to the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, the following people are eligible to carry out a best interests assessment: an approved mental health professional, a social worker, a first level nurse, an occupational therapist and a chartered psychologist.
  67. The eligible assessors are therefore, whilst highly skilled professionals within their own fields, not medically qualified and their expertise is directed more towards P's general physical and mental well-being rather than medical treatment as such.
  68. When carrying out the best interests assessment, the assessor has to consult the managing authority of the hospital or care home and also have regard to any relevant needs assessment and care plan. (Schedule A1 para.39)
  69. The proper approach and scope of the best interests assessment as required by virtue of Schedule A1, is critical to the issue to be decided in the present case. The breadth of the best interests assessment as required by the Schedule, it is submitted by the respondent, indicates that the assessor must weigh up and consider all matters in relation to the welfare of P and only if satisfied with all aspects of P's care and treatment should a standard authorisation be granted. It follows she submits that in the event of a dispute in relation to the deprivation of liberty of P, requiring referral to the court for resolution under s.21A, the court has the power under that section to make decisions in respect of all welfare issues, including withdrawal of CANH.
  70. That submission needs to be considered not only against the backdrop of the Schedule itself but also the Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (DOLS Code) issued on 28 August 2008 which supplements the main Mental Capacity Act : Code of Practice.
  71. Under the heading "What restrictions exist on authorisations" the DOLS Code provides as follows:
  72. "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"
  73. The DOLS Code provides guidance in relation to the carrying out of the best interests assessments between para. 4.58 – para. 4.76. It is unnecessary to set them out in full but it should be noted that para. 4.58 says:
  74. "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'.

  75. An assessor must include in the assessment the maximum authorisation period for which approval is recommended which cannot in any event exceed 12 months (Sch. A1 para.42). The assessor may also make recommendations about conditions to which the standard authorisation is, or is not, to be subject having regard to the best interests assessment. (Sch.A1 para. 43 & para. 53). Importantly, once the recommendations in relation to conditions are made to the hospital following the decision by the supervisory body, the managing authority must ensure compliance with them (Sch. A1 para. 53(3)).
  76. Once again the DOLS Code provides guidance, this time in respect of the recommendation of conditions:
  77. "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.

  78. A standard authorisation having been granted for a period, with or without conditions, Section 21A allows a court to intervene in respect of a number of matters where a dispute arises in relation to either a standard or urgent authorisation. It is this section which lies at the heart of the present dispute.
  79. Section 21A provides:
  80. (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.

  81. The judge held that the question of the continuation of CANH for Mr Briggs was properly brought before the court under section 21A.
  82. The judge approached it this way. He held [48]:
  83. "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."
  84. The determination of the questions as to best interests, necessity and proportionality, the judge said, has to involve consideration of P's circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P's needs "even if it is limited to a consideration of their effect" [5].
  85. The judge held at [76] that the "determinative or central issue is whether CANH is in Mr Briggs' best interests and the conclusion on it should found an order under s16(2)". However, he said, regardless of the outcome of that decision issues in relation to deprivation of liberty would arise as Mr Briggs would be deprived of his liberty either in a hospice or rehabilitation unit. The judge therefore went on to say that:
  86. ". . . 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 judge in support of this view said:
  88. "[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."
  89. The judge went on at [88] and [89] to say that as a matter of language, the determination of the three conditions (best interests, necessity and proportionality) has to involve consideration of the care and treatment proposed or provided. It is for this reason that the judge concluded that the question is whether the circumstances, i.e. including the form of care and treatment proposed, which amount to a deprivation of liberty are in the best interests of P and not solely whether his detention or deprivation of liberty is in his best interests. This approach by the judge led him to his conclusion at [93] that the question of whether CANH is in Mr Briggs' best interests is a "matter that can and should be taken into account by the COP in its consideration of the best interest's condition within the definition of the best interests requirement".
  90. The judge further held that the language of s.21A is and in particular the fact the court has the power to "determine any question relating to" any of the matters found at (a) to (d) enable the Court of Protection to make an order in relation to treatment under s21A(3) by way of variation of the standard authorisation. At [100] the judge said:
  91. "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."
  92. The judge was however of the view that, absent a court order, once the authorisation has been given, thereafter, during the life of the standard authorisation, the medical treatment will be that which the clinicians deem to be in P's best interests under s.5MCA.
  93. Finally, the judge considered the purposive approach to interpretation of the section. In doing so he referred briefly to the legislative history, the Explanatory Note and the DOLS Code of Practice together with a Ministerial statement. He concluded at [105] that these matters did not assist him and said that, in his view, the passages relied upon by the Secretary of State supported his view that Parliament intended that the best interests condition and s.21A should be applied in the way he had set out.
  94. Counsels' Submissions

  95. It is the undoubted breadth of the wording in s.21A of the Act which heavily influenced the judge and upon which Miss Richards relies on behalf of the respondent. The court, she submits, should go no further than reading the plain words found at s.21A(2) that 'the court may determine any question relating to any of the following matters….' This, she submits, gives the court clear jurisdiction to make any orders in respect of the 'purpose' of the standard authorisation, the purpose being (per Sch. A1 (2)) 'of being given care or treatment' and /or in relation to any 'condition' which can cover, she submits, any, and every, aspect of care and treatment.
  96. Miss Richards argues that the question as to whether it was in Mr Briggs' best interests to continue to receive CANH was a question under s.21A(2)(a) "relating" to whether the best interests qualification was met, because it involved consideration of whether it was in his best interests to be detained at hospital to receive care and treatment, CANH being a central part of that care and treatment.
  97. Miss Richards submits that the scope of the assessor's powers are such that in carrying out the best interests assessment, the assessor can consider and form a concluded view in relation to all aspects of P's treatment including, as here, whether nutrition and hydration should be withdrawn. In order to ensure compliance with that view, Miss Richards submits, the assessor can make it a condition of the standard authorisation that nutrition and hydration is continued (or not). By way of other examples (which are not 'life and death' decisions) she points to the situation where the issue is whether a caesarean section should be carried out on a non-consenting woman who lacks capacity or whether an anorexic young woman should be force fed.
  98. Sch. A1 para. 53, referred to above, requires the managers of the hospital to 'ensure' that the treating team comply with the recommended condition. Miss Richards did not make any submissions as to how her approach sits with the immunity provided by s.5 MCA or with the long established principle that, in general, a doctor cannot be compelled to provide treatment which he does not consider to be in the patient's best interests see Re J ( A Minor) (Child in Care: Medical Treatment) [1993] Fam 15. The solution, one presumes, would be for the hospital to make an application to the court under s 16 of the Act, with the hospital relying on s.4B in the meantime to ensure that, prior to the court deciding the matter, P was lawfully detained.
  99. Where, Miss Richards submits, the best interests qualifying requirement is contested, the question of P's best interests is for the court to determine. The hospital she says can in an application made pursuant to s.21A ask the court to consider and determine which of two options, namely CANH or withdrawal and palliative care, is in his best interests. Further, she reminds the court that in proceedings brought under s.21A the court can grant relief under sections 15 and 16 without directing there to be a further application. Whilst that is undoubtedly the case, in my judgment when considering the words of the section and its breadth, it is important to look at the section as a whole and that includes the remedy provided. Section 21A(3) says that when determining any question under subsection (2), the court may make an order 'varying or terminating' the standard authorisation. In my judgment, contrary to the judge's view, that is a clear pointer that the broad powers found in subsection (2) relate to the standard authorisation itself.
  100. Mr Nicholls QC on behalf of the Legal Aid Agency urges upon the court the narrowest of all possible interpretations of section 21A. He submits that under Schedule A1, all that is required within the best interests assessment is for the assessors to satisfy themselves that there is in fact a care plan and a needs assessment in place. No further detailed examination or consideration of the contents is, he submits, either required or appropriate. This narrow construction, he submits, informs the court's approach to an application under s.21A which should be interpreted narrowly in order to accord with Schedule A1.
  101. Miss Clement for her part, on behalf of the Secretaries of State, submits that the proper approach depends on context and purpose. S.21A and Schedule A1 are there to fill the Bournewood Gap. Section 21A in particular, she submits, is specifically there in order for a court to satisfy itself that the criteria for detention are met, and to vary or terminate the authorisation if not. That, she says, is what Strasbourg said was missing. The court must under s.21A(2)(c) look and see if there is a lawful purpose for the deprivation of liberty (deprivation of liberty having the same meaning as Article 5), the lawful purpose which the court seeks is that the deprivation of liberty is for care and treatment – any other purpose would be unlawful.
  102. Mr Sachdeva QC on behalf of the Official Solicitor largely adopts the submissions of the Secretary of State and Legal Aid Agency and therefore for the purposes of the hearing, primarily took the court to the cases which relate to statutory interpretation generally.
  103. Statutory interpretation

  104. Miss Richards, as indicated above, submits that the issue before the court can and should be decided by reference only to the wording on the face of the section.
  105. Whilst it is undoubtedly the case that the wording of the statute is the starting point and will often also be the finishing point, that is not at the expense, within permissible bounds of interpretation, of Parliament's purpose.
  106. In R (Quintavalle) v Health Secretary [2003] 2 AC 687 Lord Bingham considered precisely this issue:
  107. "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"
  108. The House of Lords concluded in that case (which was in relation to section 1(1) of The Human Fertilisation and Embryology Act 1990) that the section was to be given a purposive construction and to be interpreted in the context of the 1990 Act as a whole and the circumstances leading to the enactment. As Lord Steyn said [21]
  109. "the pendulum has swung towards purposive methods of construction…. Nowadays the shift towards purposive interpretation is in not in doubt"
  110. That raises the question as to how, if that is the case, all the other matters which the other parties submit are proper aids to interpretation in this case should be viewed, in particular the Explanatory Note and that which is found in the DOLS Code of Practice.
  111. The role of Explanatory notes was considered in R (Westminster City Council) v National Asylum Service [2002] 1 WLR 2956. Lord Steyn said:
  112. "[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:"
  113. In Solar Century Holdings Ltd & Others v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin), Mr Justice Green having reviewed the case law set out a summary of the principles drawn from them at [52] and [52vii] said:
  114. "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)."
  115. In support of the approach endorsed in Quintavalle, it seems to me that the court, having taken proper cognisance of the precise wording found in the words of the statute, is thereafter entitled and indeed, where a dispute has arisen, must move on to consider the purpose of the disputed section. In the present case that will involve:
  116. 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'
  117. Miss Richards understandably in argument relied heavily on the fact that the court can, on an application under section 21A make the orders under s.16 of the Act, but that does not help her out of the convoluted way of achieving what is in my view an unsatisfactory outcome for P at the standard authorisation stage which, on her analysis, leads to an application being made under a section which has power only to vary or to terminate the terms of the authorisation. As a consequence, in practice the court has to turn to the powers under s.16 MCA in order to make the orders necessary properly to determine the real issue which is "what treatment should P be given" and not "should P be a detained person".
  118. In his submission that the interpretation of section 21A has to be viewed in context Mr Sachdeva QC took the court to Ashingdane v United Kingdom (1985) EHRR 387. In that case the ECHR held that detention of a mental patient will only be lawful for the purpose of Article 5(1) if effected in a hospital, clinic or other appropriate clinic authorised for that purpose, but that Article 5(1) is not otherwise concerned with the suitability of treatment or conditions. Mr Sachdeva relies on this in support of his submission that as s.21A was enacted in order to fill the Bournewood Gap and thus comply with Article 5, it is limited to issues in relation to deprivation of liberty alone and is not concerned with the suitability of care or treatment.
  119. Miss Richards responds by submitting that the legislation and in particular Sch. A1 has best interests as central to the determination and the assessor has the ability to recommend conditions. In doing this, she submits, Parliament was going considerably further than was necessary in order to fill the Bournewood Gap and this is reflected in the breath of the wording of section 21A. It follows, she says that Parliament was not therefore intending to limit the section to consideration of matters relating to deprivation of liberty alone, but to all matters relating to care and treatment in respect of a person the subject of a standard authorisation.
  120. I do not think it necessary specifically to decide whether Parliament was going beyond that which was required by Article 5 as argued by Miss Richards or whether all that was being done was that Parliament was putting in place (i) through Schedule A1 that which was required by Article 5 (1) and (ii) by s.21A thereafter meeting the requirements of Article 5(4) by ensuring that the lawfulness of the detention can be determined by a court.
  121. In my judgment, regardless of whether the amendments to the Act went beyond that which was absolutely necessary in order to fill the Bournewood Gap, I am entirely satisfied that the provisions were not intended to, and do not, provide a duplicate route by which personal welfare decisions and in particular medical treatment decisions, can be made in circumstances where the deprivation of liberty itself is not the real or essential issue before the court.
  122. In my judgment therefore, when considered against the structure of the Act together with the Code of Practice and Explanatory notes, Section 21A relates to decisions about the deprivation of liberty and not, as suggested by the judge, to the circumstances which lead up to the deprivation of liberty. Sch. 1A para.16 to my mind is clear that each of the conditions which have to be satisfied relate directly to whether it is necessary, proportionate and in the best interests of P to be detained.
  123. It is important also to remember that 'best interests' is not a concept in the abstract. Anchored to the principle of 'best interests' found in section 1 MCA, is the fact that every decision made in relation to an incapacitated person under the MCA (whether deprived of their liberty or not) will be made through the prism of their best interests. The Act is decision specific – in the same way that the 'functional test' found at section 3 of the Act requires the determination of whether a person is unable to make a particular decision, (with the result that it is recognised that a person may have the capacity to make some decisions and not others). It follows that a consideration of what is in a person's best interests in relation to any aspect of the Act must be considered in relation to the specific decision to be made.
  124. Schedule A1 para. 16 sets out the best interests requirement where a person is, or is about to be, a detained resident. The three further conditions to be met, (as already identified) are that:
  125. (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"
  126. In my judgment, a question in relation to serious medical treatment is not fundamentally a question in relation to deprivation of liberty. The issue before the court, as was accepted by the judge, was whether P should or should not be given certain medical treatment. It may be that following the making of such a decision there will be implications in relation to P's liberty as was recognised by the judge. For example: there may have to be a deprivation of liberty to prevent a woman from leaving the labour ward in circumstances where she lacks capacity and refuses a caesarean section which is clinically indicated and in her best interests. In my view, in such circumstances, the deprivation of liberty is secondary. The real question is whether it is in her best interests to have the surgery, whether or not it is in her best interests to be deprived of her liberty is then determined against the backdrop of the decision in relation to the proposed serious medical treatment. In my judgment that makes the appropriate application an application made under s.15 – s.17 MCA and not an application under s21A.
  127. Having said that, in my judgment. Mr Nicholls has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor's report and which may even be determinative of whether a standard authorisation is made.
  128. Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family's wish for P to go home, set against the assessor's view that it is in P's best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.
  129. Contact, for example, is an issue capable of going to the heart of whether being detained is in a person's best interests; it may be that in an ideal world P's best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.
  130. In contrast, as the judge himself said at [94]:
  131. "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'
  132. With respect to the judge, what he says at [94] is consistent with the appellants' case. The assessors decide if the deprivation of liberty is in the best interests of the patient having consulted the managing authority and having had regard to the care plan and assessment of needs. Issues in relation to treatment are a separate matter to be put before the court as necessary, the best interests assessor has neither the expertise nor the facilities to 'carry out the intense scrutiny' necessary to reach a conclusion as to what treatment is or is not in the best interests of P, nor is such a decision necessary in order for the assessor to decide whether the deprivation of liberty of itself is required. If there is an outstanding treatment issue, P can be protected by limiting the duration of the standard authorisation.
  133. I note from the papers that, in the case of Mr Briggs, the assessor did precisely this. The best interests assessment concluded that the benefits of Mr Briggs remaining as an inpatient 'far outweighed' the burden of remaining subject to the restrictions. The assessor made no attempt to engage with the merits of the dispute as to whether treatment should or should not be withdrawn, but instead, limited the period of the standard authorisation to 4 months specifically in order for the issue as to whether treatment should be continued to go before the judge, not as an issue in relation to the deprivation of liberty but as an issue as to whether Mr Briggs should continue to be treated.
  134. Miss Richards submits that the assessor was wrong in that approach and she could have made it a condition that the treatment should or should not be continued. I am afraid I do not agree. Whilst what was done by the assessor in relation to Mr Briggs does not in any way bind this court, in my judgment the approach of the assessor was unimpeachable. The effect of the approach of the assessor was that there was no live issue for determination under s.21A in relation to the deprivation of liberty, there was however a 'life and death' personal welfare issue to be decided under ss.15-17 of the Act.
  135. Update in relation to Standard Authorisation in relation to the seriously ill

  136. The standard authorisation in respect of Mr Briggs was made on 15 August 2016 and came into force on 19 August 2016. The case proceeded in front of the judge on the basis that Mr Briggs was deprived of his liberty and subject to a valid standard authorisation.
  137. On 26 January 2017, Arden LJ gave judgment in Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31. The question in that case was whether the coroner had correctly directed himself on the question whether the treatment of a patient in intensive care would involve state detention.
  138. Arden LJ held at [89] that lifesaving treatment is not, in general, a deprivation of liberty saying:
  139. "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.
  140. In saying this Arden LJ was not ruling out the possibility that there may be circumstances where authorisation for a deprivation of liberty will be necessary and gave an example at [90] drawn from NHS Trust I v G [2015] 1 WLR 1984 where a hospital had considered it needed an order authorising a deprivation of liberty in respect of a pregnant woman of unsound mind who objected to the obstetric treatment felt to be necessary. The woman in question was to be prevented from leaving the delivery suite and might have been compelled to submit to invasive treatment such as a caesarean section.
  141. Arden LJ moved on to consider the so called 'acid test' taken from Lady Hale's judgment at [49] in Cheshire West namely is the person 'under continuous supervision and control and not free to go' saying
  142. "[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".
  143. Neither Ms Richards QC on behalf of the respondent, nor Mr Sachdeva QC on behalf of the Official Solicitor, were prepared to concede that in the light of Ferreira (in respect of which permission to appeal to the Supreme Court has now been refused and must therefore be regarded as settled law) the judge had proceeded on a mistaken premise at first instance. For my part, I find it hard to see how an argument could now be framed to the effect that Mr Briggs was being deprived of his liberty during the months he was in hospital and being cared for in a minimally conscious state. That being so, no standard authorisation was necessary and, as a consequence, the only available application open to the respondent in relation to the withdrawal of CANH should have been through the conventional s.16 route.
  144. In my view, Ferreira confirms what I myself would regard as an obvious point, namely that the question of deprivation of liberty does not arise where a person who lacks capacity is so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore, by virtue of their physical condition, they are unable to leave the hospital. It may be the case however that as the treatment progresses and P's physical condition improves, his or her ongoing care becomes a deprivation of liberty and, at that stage, a standard authorisation or court order will be required if the continued retention of P on the ward is not to become unlawful.
  145. All parties agree that circumstances will continue to arise where a person requiring treatment will meet Lady Hale's 'acid test'. For that reason the court decided to hear the case, notwithstanding that this case itself is now academic, not only because Mr Briggs has now died, but also because in this court's view no standard authorisation was necessary, and his case was therefore outside the scope of s.21A in any event.
  146. The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreira is therefore as follows:
  147. 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.
  148. Such an approach was taken in NHS Trust v FG [2014] EWCOP 30; [2015] 1 WLR 1984, a case which concerned a woman in late stages of pregnancy who suffered from a schizoaffective disorder. Mr Justice Keehan said, in considering the implications of a situation where it may be necessary to deprive P of her liberty:
  149. "[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

  150. In my judgment the judge was in error in concluding that it is appropriate to make an application to the court under s21A where the central issue was whether CANH was in the best interests of Mr Briggs. Contrary to the judge's finding at [89], in my judgment, s.21A goes to a consideration of whether the detention or deprivation of liberty is itself in P's best interests and, whilst the surrounding circumstances are part of the picture, the question is not whether the circumstances, including the medical treatment P requires, (which amount to a deprivation of liberty), are in the best interests of P, but whether it is in the best interests of P to be a detained person.
  151. In those circumstances the appeal is allowed.
  152. Lord Justice Burnett :

  153. I agree with both judgments.
  154. Sir Brian Leveson P:

  155. I echo the observations of King LJ (at [10]) concerning the way in which it has been considered necessary that what should be an intensely personal family decision should have to be manoeuvred through legal hoops in order to address issues of legal aid. In the event, I agree that Charles J went further in his interpretation of s. 21A than is warranted by a proper construction of the statute and I fully endorse the approach to the statute that King LJ has identified.
  156. It is not for the court to identify how legal aid funds should be distributed but it may be appropriate to underline the difficulties that families such as the family in this case must face, addressing difficult issues at acutely traumatic times in their lives. If agreement between the authorities and the family is possible, litigation will not be necessary but, if there is disagreement, the resulting issues are likely to be complex both as to the facts and the law. Assuming that the merits of any particular proceedings can be demonstrated, consideration should be given to the public interest justification of adding financial pressures to the many others that the affected families face.


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