Director of Legal Aid Casework & Ors v Briggs, Court of Appeal - Civil Division, July 31, 2017, [2017] WLR(D) 535,[2017] EWCA Civ 1169

Resolution Date:July 31, 2017
Issuing Organization:Civil Division
Actores:Director of Legal Aid Casework & Ors v Briggs

Case No: B4/2016/4637, 4639, 4680

Neutral Citation Number: [2017] EWCA Civ 1169




Mr Justice Charles

[2016] EWCOP 48

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017

Before :






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Between :

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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

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JudgmentLady 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. 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'').

3. 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so that a judge could decide whether Mr Briggs' best interests now required, as was submitted by his wife, that CANH be withdrawn.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'.

4. 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.

5. 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:

``. . . 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.''

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

Historical Context

12. 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:

``(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.''

13. 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)).

14. 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)).

15. 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.

16. 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:

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)''

17. 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:

(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

18. 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)).

19. 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)).

20. Under the heading `How someone's best interests should be worked out...

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