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Court of Protection and deprivation of liberty update – a 'perfect storm' coming?

It is a big week in the Court of Protection, with both the Court of Appeal and Supreme Court hearing cases which are all the more significant in light of a recent judgment, with huge implications for the scope of non-means tested legal aid and access to the Court.

On 14 December 2016 the Supreme Court started hearing only the third case centring on the MCA to reach the highest judicial level (after Aintree v James on medical treatment at the end of life, and Cheshire West on defining deprivation of liberty). The case is MN v A CCG, and the focus is on the boundary between the jurisdiction of the Court of Protection and the Administrative Court. In plain English: in making a best interests decision, is the Court of Protection (like any other best interests decision maker) limited by the options actually being offered to the Patient (P), or can the Court go further and say that other things ought to be offered to P, which is usually the remit only of judicial review in the Admin courts (ie with a very much higher bar of proving that the public body making the resource allocation decision is acting unlawfully, irrationally or unreasonably).

The Court of Appeal in this case had held that ‘rigorous probing’ of a public body to see if all appropriate options have been offered is acceptable, but undue pressure on them to offer more options or resources is not. That is squarely in line with existing Supreme Court guidance in Aintree, where Lady Hale said that “This Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further”.

Clearly, if the Supreme Court takes a different view now, it would widen the jurisdiction of the Court of Protection significantly, and would strongly encourage people to bring cases into the Court of Protection to seek options or resources which are not currently on the table.

At the same time – we have a recent case which may greatly widen the gateway for ‘free’ access to the Court of Protection - Briggs v Briggs, handed down by Charles J on 24 November 2016. In this tragic case (which has been widely reported) a 43 year old policeman and gulf war veteran was profoundly injured and left in a minimally conscious state after an accident on his motorbike for which the other driver involved was sentenced to 12 months in prison. He no longer recognised or responded to his 5 year old daughter, and his wife felt it was in his best interests to withdraw artificial nutrition and hydration and allow him to die. The treating clinicians felt that he was showing some signs of progress and that he should continue to be treated and move on for rehabilitation, though even in the very best case he would remain very severely disabled.

He was considered to be deprived of liberty in hospital, and so was under a DoLS authorisation, for which his wife was his Relevant Person’s Representative. She brought a challenge to his DoLS authorisation under MCA s21A for which (because it is about Article 5 ECHR rights to liberty) there is non-means tested legal aid. The preliminary question for the Court, before determining his best interests, was whether it was legitimate to use this s21A process (and access to non-means tested legal aid) when the dispute was about his medical treatment rather than his DoL per se.

Rejecting the intervention of the Secretary of State arguing against this, Charles J held that the care or treatment that is the purpose of the deprivation of liberty being in P’s best interests is an essential requirement of the DoLS authorisation, and so s21A proceedings against the DoLS authorisation can properly be used for a dispute about whether particular medical treatment is in his best interests in this context. (The substantive case about Mr Brigg’s best interests has not been decided at the time of writing).

We hear that an application for leave to appeal this case to the Court of Appeal is being made imminently, but if that fails, or the judgment is ultimately upheld, then this may open floodgates of non-means tested legal aided access to the Court of Protection to argue over any aspect of best interests where a DoLS authorisation is in place. The cost to the public purse in bringing those cases, and in public bodies dealing with them, is likely to be very large indeed, and all the greater as the test for deprivation of liberty, and therefore the need for a DoLS authorisation, is broadened.

In this context, another imminent Court of Appeal judgment becomes even more significant. On 13 and 14 December 2016 the Court of Appeal has heard an appeal against the Divisional Court judgment in Ferreira v Senior Coroner for Inner South London about the application of Cheshire West in the context of a patient who died in intensive care. The Coroner had decided that Maria Ferreira had not been ‘in state detention’ (interpreted as either very close to or the same as being deprived of liberty for these purposes) when she died, for the purposes of the Coroners and Justice Act 2009, and so concluded that it was not mandatory to have a jury.

In light of the Briggs judgment, raising the stakes about what issues can be brought to the Court with non means tested legal aid where there is a DoLS authorisation, the Secretaries of State for Justice and for Health both applied to intervene in Ferreira, given the amplified impact that an appellate decision explicitly expanding the Cheshire West test into Intensive Care patients and, possibly, by extension into acute hospital in patients more generally. We are acting for the Intensive Care Society and Faculty of Intensive Care medicine as intervening parties, with a view to making sure that the Court of Appeal decision is fully informed by an understanding of the context of ICU, and the likely practical implications of their decision.

It is likely to be weeks or months before the judgments in these cases are available, but it is hoped that if nothing else the Court of Appeal in Ferreira may offer some much needed guidance for clinicians and Trusts on how to interpret and apply the law on deprivation of liberty, derived from a leading Supreme Court judgment in a very different context (Cheshire West having been about long term social care and residential placements), in the practical reality of an acute hospital.

There will be some concern, however, that the ‘perfect storm’ combined effect of the 3 cases could enormously broaden the jurisdiction of the Court of Protection, the volume and costs of these cases to all public bodies involved.

In a nutshell – the Court of Appeal in Ferreira is being asked to explicitly apply the Cheshire West acid test literally in an acute inpatient / ICU context, suggesting that a great many more people in that setting ought to be recognised as deprived of liberty and authorised under DoLS; Briggs, as it stands, and potentially in the Court of Appeal if upheld, supports the idea that once under a DoLS authorisation is in place then s21A proceedings can be used, with non-means tested legal aid, to challenge any aspect of the P’s best interests, including medical treatment decisions; and – finally – in MN the Supreme Court is being asked to decide that the Court of Protection can consider best interests unconstrained by the reality of the reasonable resource allocation decision making of the public bodies involved.

Collectively, we await these judgments with great interest and some apprehension. It is unfortunate that the Law Commission’s proposals for reform of the law overall, which had been expected by the end of the year will now be delayed until March 2017, and implementation of whatever reforms they propose must still be regarded as probably some years away.

If you would like to discuss these cases, or the issues arising, please do not hesitate to contact us.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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