Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE CHARLES
BETWEEN:
IN THE MATTER OF S21A OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF PAUL BRIGGS
Case No: COP 12942115
LINDSEY BRIGGS
Applicant
-and-
(1) PAUL BRIGGS
(By his litigation friend, the Official Solicitor)
(2) THE WALTON CENTRE NHS FOUNDATION TRUST
(3) WIRRAL CLINICAL COMMISSIONING GROUP
(4) MINISTRY OF JUSTICE
(5) DEPARTMENT OF HEALTH
(6) THE DIRECTOR OF LEGAL AID CASEWORK
Respondents
AND
AND IN THE CONCURRENT
PROCEEDINGS IN THE COURT OF PROTECTION
IN THE MATTER OF SS15-16 OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF PAUL BRIGGS
THE WALTON CENTRE NHS FOUNDATION TRUST
Applicant
-and-
(1) PAUL BRIGGS (By his litigation friend, the Official Solicitor)
(2) LINDSEY BRIGGS
(3) WIRRAL CLINICAL COMMISSIONING GROUP
(4) MINISTRY OF JUSTICE
(5) DEPARTMENT OF HEALTH
(5) THE DIRECTOR OF LEGAL AID CASEWORK
Respondents
Victoria Butler-Cole (instructed by Irwin Mitchell LLP) for Mrs Briggs
Conrad Hallin (instructed by Hill Dickinson LLP) for the Walton Centre and the WCCG
Joanne Clement (instructed by the Government legal Department) for the MoJ and the DoH
Eleanor Grey QC and Nicola Greaney (instructed by the in-house solicitor for the LAA) for the LAA
Vikram Sachdeva QC instructed by the Official Solicitor
Hearing dates 7 & 8 November 2016
Judgment
Charles J :
Introduction and Overall Conclusion
This is a public document. The hearing was held in public and no reporting restriction order has been made. It was held to address the preliminary issue whether the proceedings issued by Mrs Briggs were properly brought under s. 21A of the Mental Capacity Act 2005 (the MCA).
That issue turns on the question whether the dispute about whether it is in the best interests of Mr Briggs for him to be given clinically assisted nutrition and hydration (CANH) is one that can properly be determined in proceedings brought under s. 21A of the MCA. The MoJ and the DoH (together the Secretary of State), the LAA and the Official Solicitor argue that it cannot and as a result Mrs Briggs is not eligible for non means tested funding through legal aid for representation in respect of that best interests issue.
A central plank in their argument is that the determinative best interests issue in this case relates to the medical treatment of Mr Briggs and so:
it is not a matter to be taken into account by decision makers and the Court of Protection (the COP) in applying the best interests requirement defined by paragraph 16 of Schedule A1 of the MCA for the purposes of the Deprivation of Liberty Safeguards (the DOLS) introduced into the MCA by the Mental Health Act 2007 (the MHA 2007), but
it is a matter that falls to be taken into account by decision makers and the COP in applying the best interests test for the purposes of s. 5 (which applies to decision makers on the ground) and s. 16 (which applies to the COP) and so in accordance with the principles and approach set out in s. 1 and s. 4 of the MCA.
This argument was founded on submissions that:
as a matter of principle (a) the purpose of Article 5 is to protect the individual from arbitrariness, and (b) provided the individual is in the right type of placement, Article 5 is not concerned with the suitability of his conditions or treatment, and so
as Article 5 does not regulate the conditions in a hospital or the treatment that the individual receives there, and the DOLS and so s. 21A were enacted to address the Article 5 rights of individuals (and not their other rights e.g. under Articles 2, 3, 6 and 8) they were not intended to and do not regulate or give an individual the ability to challenge the conditions and treatment given to him in a hospital.
As appears later I accept that:
the authorities establish the principles relied on concerning the extent of an individual’s Article 5 rights, and
the DOLS were introduced as part of the amendments to the MCA designed to address the Bournewood Gap.
But, I do not accept that the CANH issue cannot properly be addressed in proceedings under s. 21A.
Conclusion. In my view the answer to the preliminary issue is that Mrs Briggs’ proceedings were properly brought under s. 21A because on a literal and purposive approach it is an issue to be considered:
in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and
under s. 21A(2), (3), (6) and (7) of the MCA.
It follows that, in my view, she is eligible for non means tested legal aid funding for representation on the CANH issue that is to be determined by the COP at a hearing presently fixed to take place at the end of November.
Background and introductory comments
On 3 July 2015 Mr Briggs was the victim of a road traffic accident. As a result of that accident he suffered serious brain and other injuries and was rendered unconscious. He is now in a minimally conscious state and does not have the capacity to make decisions relating to his care and treatment or to communicate his wishes and feelings to others. His survival has been and is dependent on the package of care and treatment he has received and is receiving in hospital. That care and treatment includes CANH. If it is no longer given he would die.
His present placement is at a hospital within the Walton Centre NHS Foundation Trust (the Walton Centre) and he has been there since 22 January 2016.
The case has been argued before me on the premise that:
applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 (“Cheshire West”) Mr Briggs is being deprived of his liberty at the Walton Centre, and
the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).
One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.
In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
I also make the general comments that:
the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and so
to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.
A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.
The two sets of proceedings before me have been initiated because there is a disagreement between Mrs Briggs (and other members of Mr Briggs’ family) and his treating team as to whether it is in his best interests for him to be given CANH. The treating team is of the view that it is and that Mr Briggs should move to a rehabilitation unit, where it will be continued. Mrs Briggs is of the view that it is not and that her husband should receive palliative care. The first option entails a move to a different placement and treating team. Subject to a change in the views of the treating team and others at the Walton Centre, if the COP concluded that CANH was not in Mr Briggs’ best interests that alternative would also involve a move to a different placement, and probably a hospice.
Before me the case was argued on the basis that the decision of the COP on that best interests issue will, or probably will, involve a move and that:
on a move to a rehabilitation centre (or if and so long as he remains where he is) Mr Briggs will continue to be deprived of his liberty that would have to be authorised and the DOLS would apply to him, although the deprivation of liberty might be authorised by an order made by the COP rather than a continuing authorisation under the DOLS, and
on a move to a hospice, Mr Briggs will continue to be deprived of his liberty and it would have to be authorised under an order of the COP or possibly if they applied under the DOLS.
As is apparent from what I have said the disagreement that has caused this litigation relates to a best interests decision about serious medical treatment and its resolution is determinative of what will happen to Mr Briggs. So, this case can and has been described as a case relating to serious medical treatment. But in my view it can also be said that this case concerns and determines and so is about:
whether the authorisation of Mr. Briggs’ deprivation of liberty should continue to be under the DOLS or whether it should be founded on an order of the COP,
whether the present DOLS authorisation should be brought to an end and orders made in respect of acts done in connection with it, in particular orders excluding persons from liability,
where Mr Briggs should reside to receive the package of care and treatment that best promotes his best interests, or
what Mr Briggs’ package of care and treatment should be.
(As I explain later these descriptions link to the powers given to the COP by s. 21A of the MCA and the relief it can grant thereunder in respect of a continuing DOLS authorisation and its termination of variation).
However it is described this case raises issues emotional, medical and legal issues in respect of which Mrs Briggs would benefit greatly from advice and representation.
The overriding objective set out in Rule 3 of the Court of Protection Rules 2007 would be promoted by her having such advice and representation because without it Mrs Briggs will not be able to present her case on an equal footing with the other parties, and the COP will be deprived of the value that would undoubtedly be added by her being represented by her present solicitors and counsel on those issues.
Rule 3 provides that the COP is to seek to give effect to that overriding objective in interpreting any rule or practice direction and so to Practice Direction 9E – Applications relating to serious medical treatment.
The Walton Centre and the Wirral Clinical Commissioning Group (the WCCG) made it clear that they would welcome a result that funded such representation for Mrs Briggs (see also W v M and Others [2011] EWHC 2443 (Fam) at paragraph 260).
Mrs Briggs has indicated that if she is not eligible for non means tested legal aid to fund that representation, the impact of a contribution towards legal aid funding on her savings means that she would have to act as a litigant in person on the central issue in the case.
Introduction to the preliminary issue – whether proceedings were properly brought by Mrs Briggs under s. 21A of the MCA
Regulation 5(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480 provides an exception from the requirement to make a determination in respect of an individual’s financial resources for legal representation to the extent that it is in proceedings in the COP under s. 21A of the MCA and the individual to whom legal representation may be provided on that basis is the individual in respect of whom a DOLS authorisation is in force (and so P), or a representative of that individual appointed as such in accordance with Part 10 of Schedule A1 to the MCA (the relevant person’s representative (the RPR)).
The issue has been argued on the basis that eligibility for non means tested legal aid is founded on the continued existence of two factors:
the proceedings in which the representation is funded being “under s. 21A of the MCA”, and
the DOLS authorisation remaining in existence.
It was accepted that Mrs Briggs launched her proceedings as an RPR in reliance on s. 21A. In doing so she openly asserted and maintained that she had done so because it enabled her to claim legal aid on a non means tested basis. At the time she initiated her proceedings I understand that she had been told that the Walton Centre would or would be likely to issue an application to the COP for determination of the issue whether or not it is in Mr Briggs’ best interests for his CANH to be continued. The Walton Centre has done that.
I joined the fourth to sixth Respondents to Mrs Briggs’ application to enable them to address the preliminary issue.
As I have already mentioned, the Secretary of State (and so the MoJ as the funding Department of the LAA) and the Official Solicitor argued that the COP could not properly consider the best interests issue relating to the CANH under s. 21A and so Mrs Briggs was not eligible for legal aid on a non means tested basis to fund representation on that best interests issue relating to serious medical treatment on the basis that it did not arise or properly arise in “proceedings under s. 21A”
The Walton Centre and the WCCG were neutral on the availability of non means tested legal aid but argued that the relief or the substance of the relief sought would have to be granted under ss. 15 and 16 of the MCA and so not under s. 21A.
It was not argued the proceedings issued by Mrs Briggs were an abuse or a contrivance. Indeed it was accepted that:
they were not,
the COP can grant relief under other sections of the MCA (and so under ss. 15 and 16) in an application under s. 21A (see Re UF [2013] 4289 at paragraph 11 and CC v KK [2012] EWHC 2136 (COP)), and so
the COP could have granted relief in this case under ss. 15 and 16 if the only application before it had been that made by Mrs Briggs in reliance on s. 21A, and it could do this without directing that a further application be made,
Practice Direction 9E, and no other Rule or provision, provided that an application “relating to” a best interests decision about serious medical treatment should be commenced in any particular way,
there was no difficulty in complying with Practice Direction 9E in proceedings issued in reliance on s. 21A and, in any event, Rule 26 of the COP Rules 2007 enables the COP to depart from it,
whatever the result on the CANH issue Mr Briggs will continue to be deprived of his liberty and so when the COP determines that issue it will need to address how that deprivation of liberty is authorised, and
on the approach taken in Re UF the authorisation under the DOLS (or a replacement) would remain in existence until the COP had decided the CANH issue and a decision about it under ss. 21A (3), (6) and (7) would or may be needed.
The points listed in the last paragraph are important because they mean that:
Mrs Briggs’ proceedings are proceedings under s. 21A and that applying Re UF until this case is decided by the COP an authorisation under the DOLS will remain in existence and so on any view those proceedings have an authorisation to bite on, and in my view
the COP can grant relief under s. 21A in an application brought for orders under ss. 15 and 16 of the MCA (the mirror image of Re UF and CC v KK).
Re UF addressed the same Legal Aid Regulation and identified a route (accepted by the LAA) that:
continued eligibility for non means tested legal aid although the COP (rather than the supervisory body) took the relevant decisions, and
meant that what happened to that authorisation was a live issue at the end of the case.
My understanding is that the approach set out in Re UF has been applied in a number of proceedings brought under s. 21A which have turned on a detailed assessment of the relevant package of care, support and treatment, possible alternatives and which of them the COP has concluded will best promote P’s best interests.
So Re UF identified a route that the LAA accepted was not a contrivance by which non means tested legal aid was available albeit that the COP took over all decision making and could make decisions under ss. 15, 16 and 21A. Here Mrs Briggs’ proceedings came first and in Re UF separate proceedings seeking a welfare order and/or declarations had not been issued. Whether proceedings under s. 21A could be issued second to trigger eligibility to non means tested legal aid was not argued before me, but it would be surprising if the order of issue affected the application of Re UF and so the availability of non means tested legal aid. Also, it was not argued before me whether applying Regulation 5 non means tested legal aid could be given to both P and an RPR or only to one of them. I expressed the preliminary view that it could be given to both.
Experience indicates that many if not most cases brought under s. 21A in respect of a DOLS authorisation turn on the best interests assessment made by the COP and many lead to changes in the package of care, support and treatment to make it less restrictive rather than a change of circumstances that result in P no longer being deprived of his physical liberty and that these are implemented by or reflected in orders made under s. 21A varying the DOLS authorisation directly or by reference to the care plan it is based on or imposing conditions as a direct result of the best interests conclusion reached by the COP.
The only difference between those cases in which, applying Re UF, non means tested legal aid has been awarded and the central issue has turned on an examination of the package of care, support and treatment and this one is the nature of the issue relating to Mr Briggs’ care, support and treatment. So it seems that the stance of the Secretary of State, the LAA and the Official Solicitor was triggered by the existence of the serious medical treatment issue in this case and of a well established approach to serious medical treatment cases.
The Official Solicitor expressly advanced his argument as a jurisdictional one and acknowledged that it was finely balanced. The Secretary of State and the LAA did not categorise their arguments but they are ones of statutory interpretation and application.
The positions of the Secretary of State, the LAA and the Official Solicitor varied on the availability of non means tested legal aid for representation to present arguments on issues relating to the care, support or treatment of a P and so his care plan and needs assessment, and so on what the COP could properly consider and grant relief in respect of under or applying s. 21A:
the Official Solicitor submitted that non means tested funding for such representation was not available for any of such issues because they all related to the conditions of a detention and so were outside the ambit of the DOLS and s. 21A,
the Secretary of State submitted that such funding was available for representation on such issues if they related to “physical liberty”. As I understand the Secretary of State’s position that includes an examination of less restrictive conditions relating to physical liberty even though they also create a deprivation of liberty within Article 5 in the same or a different placement (e.g. a change from locked doors to door sensors and greater freedom of movement within a Care Home). But if that understanding is wrong, it is clear that the Secretary of State distinguishes between conditions that relate to physical liberty and those that do not – which, in the context of alternative regimes at the only available Care Home, it was submitted include the availability of en suite bathrooms or food choices or things of that nature. That distinction flows from the way in which the Secretary of State advanced his argument by reference to what is and is not covered by and so justiciable under Article 5, and
although at the hearing it adopted the arguments of the Secretary of State on the meaning and effect of s. 21A and Regulation 5, the LAA was not prepared to commit to any circumstances in which it accepted that such funding was available for representation on such issues.
That stance of the LAA and experience of its general approach founds the conclusion that there is a real risk that:
it will seek to advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a P who is the subject of a DOLS authorisation,
in doing so, it will change its existing approach in such cases and so challenge Re UF and/or change the stance it adopted in that case,
in doing so, it will adopt the position of the Official Solicitor and not that of the Secretary of State set out in paragraph 36 (i) and (ii) respectively.
After the hearing I was helpfully provided with further information by counsel for the LAA about its approach in the past and the future. This refers to the reliance placed on what the LAA is told and indicates that the approach in Re UF is being and will continue to be accepted and applied with the result that if the COP continues the DOLS authorisation non means tested legal aid will continue to be available in respect of applications about it. But it asserts that non means tested legal aid is (and has only been made) available in respect of matters that “relate directly to the discharge or variation of the standard or urgent authorisation” and that providers should always apply for a separate certificate to carry out non means tested services as and when these arise alongside a non means tested matter. This does not fully accord with the understanding of the solicitors acting for Mrs Briggs on the existing approach of the LAA and, more importantly it does not explain:
what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, and
whether it adopts the position of the Secretary of State or the Official Solicitor.
To my mind, although it seems to show that Re UF will continue to be applied this further information perpetuates uncertainty and so compounds the risk that the approach of the LAA will give rise to serious and possibly insurmountable hurdles being put in the way of challenges being made by Ps and/or their RPRs to a DOLS authorisation, and so the lawfulness of P’s deprivation of liberty, with the benefit of representation or at all because of the difficulties they would face in respect of contributions and as litigants in person.
The representation of P has been an issue in a line cases that do not fall within the DOLS but in which, applying Cheshire West, P is being deprived of his liberty and so that detention should be authorised by an order made by the COP. The last in the line is Re JM [2016] EWCOP 15. Those cases show the limitations on the availability of legal aid in such cases if they are not disputed. After the JM case, the Secretary of State has acknowledged in correspondence that, contrary to his stance in that case, a resource of people and/or of resources to provide people to act as representatives for Ps who are deprived of their liberty in such cases is not readily available. This means that:
in that type of case the COP cannot lawfully authorise the deprivations of liberty, and so
such cases are being stayed, and
many (probably in the thousands rather than the hundreds) of such cases are not being brought in part because they will be stayed and the costs of issuing them can be better spent.
We are all only too aware of problems flowing from austerity. But assessed through my eyes as Vice President of the Court of Protection the stance being taken by the Secretary of State in this case, and in and after Re JM, demonstrates the existence of a continuing failure by the Secretary of State to address an urgent need to take steps to provide resources that would enable the COP to deal with cases relating to probably thousands of Ps in a lawful way, and so in accordance with the procedural requirements of Article 5 and the requirements of Article 6. The result of this sorry state of affairs is that in probably thousands of cases not covered by the DOLS deprivations of liberty are not being authorised under the amendments made to the MCA by the MHA 2007 to comply with Article 5.
At present:
whether or not a DOLS authorisation has been granted, this result does not arise in cases that raise serious medical treatment best interests issues because in them, provided the relevant NHS Trust undertakes to pay half his costs, the Official Solicitor has organised his resources to enable him to represent P, and
in cases under s. 21A problems related to the representation of P are ameliorated if and to the extent that P or P’s RPR is eligible for non means tested legal aid.
If the Secretary of State, the LAA and the Official Solicitor are right on the preliminary issue the amelioration referred to in (ii) will be reduced or disappear. If they are not it may have some impact on the existing approach of the Official Solicitor and NHS Trusts in cases relating to serious medical treatment.
However, in my view it was correctly common ground that:
the availability of non means tested legal aid and the consequences if it is not available in this case and more generally are not relevant factors in the determination of the preliminary issue, and
the answer to the preliminary issue is determined by the identification of the issues that can and cannot be properly considered under s. 21A of the MCA.
The amendments made by the Mental Health Act 2007
Amendments were introduced into the MCA by the MHA 2007 to fill the gap (regularly described as the Bournewood Gap) identified by the decision of the ECtHR in HL v UK (2005) 40 EHRR 32. The gap was that the law of England and Wales provided insufficient safeguards against the unlawful deprivation of liberty of people lacking capacity to consent to the situation that they were in or had been put in. The ECtHR concluded that HL was deprived of his liberty in the relevant hospital and that:
his detention (deprivation of liberty) was not in accordance with a procedure prescribed by law as required by Article 5(1) (see paragraphs 123 and 124 of the judgment) and so was arbitrary. In particular, the ECtHR noted the absence of any formalised admission procedures and of any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention and that 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 Mental Health Act 1983 and would be of equal importance for patients who are legally incapacitated and have, as in that case, extremely limited communication abilities (see para 120 of the judgment), and
the procedures for challenge by way of judicial review and/or habeas corpus did not comply with Article 5(4) because they did not provide a procedure by which HL could seek a merits review of whether the conditions of his detention remained applicable (see para 140 of the judgment).
The amendments to the MCA by the MHA 2007 to fill the Bournewood Gap were not limited to the introduction of the DOLS. Broadly, those amendments introduce three routes by which a deprivation of liberty can be authorised and so rendered lawful:
First, s.4A(3) provides that a person (D) may deprive another (P) of his liberty if by doing so D is giving effect to a relevant decision of the COP.
Secondly, s.4A(5) provides that D may deprive P of his liberty if such deprivation is authorised by Schedule A1 to the MCA 2005 (the DOLS which apply only to persons detained in a hospital or care home for the purposes of care or treatment – in circumstances which amount to a deprivation of liberty). Under the DOLS a standard authorisation may only be granted by a supervisory body after an application by the managing authority of a hospital or care home and the undertaking of an assessment process that addresses six qualifying requirements (the age, mental health, mental capacity, best interests, eligibility and no refusals requirements – see Part 3 of Schedule A1). It is therefore a process or procedure by which decisions are made on the ground by identified people applying a series of tests, all of which must be satisfied.
Thirdly, s.4B provides that a person may be deprived of his/her liberty pending an application to the court, if the deprivation of liberty is necessary to give life-sustaining treatment or prevent serious deterioration in that person’s condition.
Section 4A(1) of the MCA 2005 provides that the MCA does not authorise any person to deprive any other person of his liberty, save in accordance with the routes outlined above. Accordingly, s. 5 of the MCA, which protects a person from liability when acting in connection with the care or treatment of another person lacking capacity in relation to such care or treatment does not provide protection from liability for any deprivation of liberty (and so breach of Article 5) if the circumstances of and in which that care or treatment is given amount to an objectively assessed deprivation of liberty of a person who lacks capacity.
The protection from liability and the safeguards for P provided by the DOLS. By s. 5(2) and paragraph 3 of Schedule A1 (and so the DOLS) protection from liability is founded on the premise that the providers of the acts, and so the package of care and treatment, do not incur liability in relation to an act that they would not have incurred if P had had capacity to consent to that act and had so consented.
The MCA is decision specific and one of its principles is that a decision made or done on behalf of a person who lacks capacity must be done in his best interests (see s. 1(4)). Section 4 sets out the approach that a person must take in determining what is in P’s best interests for the purposes of the MCA.
So whilst a standard authorisation is in force exemption from liability for acts done in P’s best interests and the lawfulness of the deprivation of liberty are based on:
the s. 5 best interests decisions in respect of the acts comprising the care and treatment of P, and
the standard authorisation in respect of the deprivation of liberty created by the implementation of the relevant package of care and treatment (see s. 4A(5)).
Accordingly, 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.
A standard authorisation cannot be given unless all of the six qualifying requirements are met. The definition of the best interests requirement in paragraph 16 of Schedule A1 requires the decision maker to be satisfied that four conditions are met. The first is that the relevant person is a detained resident (which is defined), Reading in that definition the other conditions defined by 16 (3), (4) and (5) that must be satisfied to meet the best interests requirement are that it is:
in the best interests of P (condition 2 – the best interests condition),
necessary to prevent harm to P (condition 3 – the necessity condition), and
a proportionate response to the likelihood of P suffering harm and the seriousness of that harm (condition 4 – the proportionality condition)
for P to be detained in a hospital or care home – for the purpose of being given care or treatment – in circumstances that amount to a deprivation of P’s liberty.
As a matter of language, the determination of those questions 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 in them even if it is limited to a consideration of their effect. Indeed, this is mandated by paragraph 39 of Schedule A1 which provides that the assessor must have regard to the relevant needs assessment and care plan. They are defined in terms that unsurprisingly cover how the needs of the person are to be met whilst he is in the relevant hospital or care home.
The best interests assessment required by Schedule A1 must be carried out applying the principles set out in s. 1 and the approach set out in s. 4 of the MCA because those principles apply “for the purposes of the MCA”.
By their terms and the application of (a) the principle in s. 1(6) that regard must be had to whether what is proposed or in place is the least restrictive option, and (b) the approach mandated by s. 4, the determination of the questions posed by the definition of the best interests condition must involve a consideration of:
the impact of possible and available alternatives and issues of degree, and
as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so.
The protection from liability and the safeguards for P provided by a welfare order made by the COP. Under s. 4A(3) the exemption from liability and lawfulness of any deprivation of liberty are based on a similar but different route. The authorisation of the deprivation of liberty is founded on the making of a welfare order under s. 16(2)(a) of the MCA and its implementation.
Section 16(2)(a) provides that the COP may by making an order make the relevant decision or decisions on P’s behalf in relation to the relevant matter or matters. The order is founded on what the COP concludes is in P’s best interests on and in respect of those matters. That test is not defined for the purposes of s. 16 but in addressing it the COP must apply the principles set out in s. 1 and the approach set out in s. 4 of the MCA.
So, and in contrast to the position when giving an authorisation under the DOLS, a substituted consent based on the COP’s conclusion on what package of care and treatment is in P’s best interests is given by the welfare order.
The protection from liability for the implementation of the care and treatment is founded on that order and the substituted consent it gives and/or on the binding nature of the COP’s best interests conclusion on those who implement the order and s. 5 of the MCA.
The lawfulness of any deprivation of liberty created by the circumstances, including the impact of the package of care and treatment, is also based on the implementation of the order. But it may also be based on a continuing or new authorisation under the DOLS (see paragraph 27 of Schedule A1 read with paragraphs 22 to 24 thereof).
In respect of any deprivation of liberty created by the implementation of the package of care and treatment upon which the order of the COP is based it has not yet been decided whether s. 4A(3) works:
by the COP giving consent on behalf of P to the relevant package of care and treatment and to the deprivation of liberty it creates, or
by the COP giving consent on behalf of P to the package of care and treatment but not to the deprivation of liberty it creates, which is authorised and so made lawful by the section.
For present purposes I shall assume that the welfare order made by the COP does not provide a substituted consent and so take the case outside Article 5 on the application of its subjective element.
In the application of the MCA, the issue whether the COP needs to consider, as a separate question, whether the implementation of its order creates a deprivation of liberty and consent to it is only theoretical. This is because it is subsumed in the consideration that must be carried out (see s. 1(6)) of the question whether the package of care and treatment is the least restrictive available option and in P’s best interests (s. 4). In doing that the COP must consider the consequences of its implementation and so can take the approach that provided that the package is the least restrictive available option to best promote P’s best interests its order will authorise or give consent to any deprivation of liberty created by its implementation.
A best interests test applying for the purposes of the MCA and so applying s. 1 and s. 4 of the MCA. The approach to the application of a best interests test for the purposes of the MCA is identified in paragraphs 18 and 39 of the judgment of Lady Hale in Aintree University Hospitals NHS Trust v James [2013] UKSC 67, [2014] AC 591 where she says that:
18. ----- [The MCA] is concerned with doing for the patient what he could do for himself if of full capacity but it goes no further -----------------
39 ----- in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.
That case concerned serious medical treatment and the making of declarations. It identifies what an MCA decision maker or assessor must take into account and is doing when applying a best interests test for the purposes of the MCA whether or not that decision founds a welfare order (by which the COP makes the decision on behalf of P and so can be said to have given a substituted consent). This is because that description and guidance is founded on s. 1 (in particular s. 1(5) that provides that any act done, or decision made, under the MCA for or on behalf of P must be done, or made, in his best interests) s. 4 and s. 15 (the power to make declarations) of the MCA and not s. 16 of the MCA.
In taking that approach, like a person with capacity, the COP and all best interests decision makers under the MCA on whether an act to be done or a decision made for or on behalf of P is in P’s best interests can only consider and so choose between available options (see ACCG and Another v MN and Another [2013] EWHC 3895 (CoP) and in the Court of Appeal [2015] EWCA Civ 41; [2016] Fam 87 in particular at paragraph 46 of the judgment of Munby LJ).
This element of choice and that underlying approach is reflected in the way in which s. 5(2) and paragraph 3 of Schedule A1 provide that persons who do acts relating to P’s care and treatment in P’s best interests do not incur liability. That route which is based on a hypothetical consent by P is another indication that the guidance given by Lady Hale on the application of the best interests test is general guidance.
In the case of an assessor of the best interests requirement this choice of the available options will be directed by the decisions made by those on the ground concerning the care, support and treatment and possible alternatives and in a case relating to serious medical treatment those views will include those of an IMCA if one is appointed under s. 37 or as here of a family member whose presence obviates the need for an IMCA. Competing views might, for example, prompt the assessor to insist on a condition that an application is to be made to the COP to determine a best interests issue (including one relating to serious medical treatment) and result in the COP varying the authorisation by removing that condition or terminating the authorisation.
Section 21A. To address the Bournewood gap, the purpose of s. 21A is to provide a procedure for a merits review by the COP of an authorisation granted under the DOLS and so of an authorisation granted under the procedure introduced to satisfy Article 5(1) in the cases of persons in hospitals and care homes. It provides that:
21A Powers of court in relation to Schedule A1
This section applies if either of the following has been given under Schedule A1—
a standard authorisation;
an urgent authorisation.
Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
whether the relevant person meets one or more of the qualifying requirements;
the period during which the standard authorisation is to be in force;
the purpose for which the standard authorisation is given;
the conditions subject to which the standard authorisation is given.
If the court determines any question under subsection (2), the court may make an order—
varying or terminating the standard authorisation, or
directing the supervisory body to vary or terminate the standard authorisation.
Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
An order under subsection (6) may, in particular, exclude a person from liability
(my emphasis).
In my view, it was correctly common ground before me that although s. 21A introduces into the MCA a provision to enable a decision made by a public authority to be challenged, and so is directed to whether that decision has been properly made and is justified, the section provides that the COP must make its own decisions on the matters listed in ss. (2).
So under s. 21A, the COP does not take an administrative law or appellate approach.
This accords with the conclusion of the ECtHR in HL that a challenge by way of judicial review did not satisfy Article 5(4). Also, in my view ss. (6) and (7) reflect this approach because they enable the COP to recognise that:
different decision makers could make different decisions in respect of the same circumstances,
circumstances may have changed by the time the matter is before the COP, and
assessors and decision makers on the ground may have to support an interim position pending a dispute on a best interests issue or for other reasons.
Some comments
As explained the amendments introduced by the MHA 2007 to address the Bournewood gap are directed to the authorisation of a deprivation of liberty and do not provide that the person implementing care, support and treatment packages on the ground is not liable for other consequences of their implementation. That exclusion of liability is based on the making of decisions applying the best interests test and either s. 5 of the MCA or orders of the COP.
As appears from Re UF and Re HA [2012] EWHC 1068 (COP) I consider that generally the COP should take control of all aspects of the case when proceedings are brought under s. 21A. In my view, that is particularly the case here given the nature of the CANH best interests issue.
I agree with the Walton Centre and the WCCG that in this case the COP should make a welfare order under s. 16 to reflect and put into effect its decision on whether the CANH is in Mr Briggs’ best interests. That order will be based on a defined package of care, support and treatment and so any deprivation of liberty created by its implementation will be authorised by that order. This reflects the role of the COP as the court charged with making the relevant best interests decision on a disputed serious medical treatment issue (and see Re MN (An Adult) (Court of Protection: Jurisdiction) [2015] EWCA Civ 411; [2016] Fam 87 at paragraph 87 to 91).
I was not referred to, and I have not found, any provision that automatically brings a standard authorisation to an end when such an order is made.
If there is one the standard authorisation will be terminated by the COP making such an order. If there is not the COP should address its termination. In both cases it may well also be necessary for the COP to make an order under s. 21A(6).
So if the result of the CANH issue is that it should be part of Mr Briggs’ treatment, I consider that:
pending a move to a rehabilitation centre, the authorisation of his deprivation of liberty at the hospital should no longer be governed by the standard authorisation (continued if necessary by the COP) but by the welfare order made by the COP although a continuation of a DOLS authorisation is a possibility,
so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct consequence of the best interests CANH decision,
the making of orders under s. 21A (6) and (7) may need to be considered, and
how the deprivation of liberty at the rehabilitation centre is to be authorised should be addressed by the COP and it may be that any court order should end on the transfer and that reliance should then be placed on s. 5 of the MCA and a DOLS authorisation.
Alternatively, if the conclusion of the COP on the CANH issue is that it should not be part of Mr Briggs’ treatment I consider that:
the position relating to Mr Briggs’ deprivation of liberty pending a move to another placement where Mr Briggs receives palliative care should be covered by a court order although if the treating team change their position authorisation under a continuation of a DOLS authorisation is a possibility,
so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct result of the best interests decision as a direct consequence of the best interests CANH decision,
the making of orders under s. 21A(6) and (7) will need to be considered, and
how the deprivation of liberty at the new placement (probably a hospice) is to be authorised should be addressed by the COP.
So I agree 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 s. 16(2). But, in my view the consequences set out in the last two paragraphs mean that 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).
The principles relating to Article 5 relied on by the Secretary of State, the LAA and the Official Solicitor
In Winterwerp v Netherlands (Application 6301/73) (1979) 2 EHHR 387 the ECtHR set out that for a person to be lawfully detained for the purposes of Article 5(1)(e) of the Convention there must be (a) reliable objective evidence of unsound mind; (b) a mental disorder of a kind or degree warranting compulsory confinement which persists; and (c) detention must be effected in accordance with a procedure prescribed by law. At paragraph 51 of its judgment in that case, the ECtHR rejected the argument made on behalf of the patient that Article 5(1)(e) conferred the right of a person of unsound mind to appropriate treatment in order to ensure that he is not detained longer than absolutely necessary and held that a mental patient’s right to treatment appropriate to his condition cannot as such be derived from Article 5(1)(e).
In Ashingdane v United Kingdom (1985) 7 EHHR 528 the ECtHR said at paragraphs 44, 45 and 52
-------------- The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of subparagraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Article 5(1)(e) is not in principle concerned with suitable treatment or conditions.
---------- As the Government pointed out, in his domestic litigation the applicant did not challenge the legal basis for his detention under the 1959 Act or seek his release from the reality of detention, but was claiming an entitlement to accommodation and treatment in the more “appropriate” conditions of a different category of psychiatric hospital.
------------ Article 5(4) does not guarantee a right of judicial control of the legality of all aspects or details of the detention. The scheme of Article 5, when read as a whole as it must be, implies that in relation to one and the same deprivation of liberty the notion of “lawfulness” should have the same significance in paragraphs 1(e) and 4. Thus, the domestic remedy available under paragraph 4 should enable review of the conditions which, according to paragraph 1(e) , are essential for the “lawful detention” of a person on the ground of unsoundness of mind.
However, the claims that the applicant was prevented by operation of section 141 of the 1959 Act from pursuing before the national courts do not fall within the scope of the judicial determination of “lawfulness” within Article 5(4) guarantees. As noted above, in his domestic litigation the applicant did not challenge the legal basis for his detention as a person of unsound mind under the 1959 Act or seek his release from the reality of detention: he was claiming an entitlement to accommodation and treatment in the more “appropriate” conditions of a different category of psychiatric hospital, a matter not covered by paragraph 1(e) of Article 5.
In R(Munjaz) v Mersey Care NHS Trust [2004] QB 395 the Court of Appeal said at paragraph 69 to 70
However, the jurisprudence of the Strasbourg Court distinguishes between the detention and its conditions. The detention itself has to be justified and challengeable in accordance with Article 5. The conditions under which a detained person is held have to comply with Article 3 and Article 8. Furthermore, there will be a breach of Article 5(1) where a person is detained in a type of institution which is inappropriate to meet the Article 5(1) purpose of his detention. Thus a person detained as a juvenile in need of educational supervision should not be detained in a prison where no education is available: see Bouamar v Belgium (1987) 11 EHRR 1; and a person detained as a person of unsound mind should not be kept in prison: see Aerts v Belgium (2000) 29 EHHR 50. But provided that the institution concerned is within the appropriate category, there is no breach of Article 5. Thus in Ashingdane v United Kingdom (1985) 7 EHRR 528, there was no breach where a patient was detained in the high security conditions of Broadmoor for 18 months after the Home Secretary had acknowledged that his condition no longer warranted it and he could be transferred to a local psychiatric unit. The difference is one of degree not nature and quality.
Just as the tort of false imprisonment is concerned with all or nothing situations, so is Article 5. It is concerned that deprivation of liberty should be properly imposed, its lawfulness open to challenge so that a person unlawfully detained may be set free, and that the place of detention conforms the purpose which it is imposed. But beyond that it has not so far been concerned with the conditions of detention. These are left to Articles 3 and 8. As we have seen, these are capable of protecting psychiatric patients from the very real abuses which they may suffer unless a remedy is available to them.
In Stanev v Bulgaria (2012) 55 EHRR 22 the ECtHR said at paragraph 143:
The Court reiterates that in order to comply with art. 5(1), the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purposes of art. 5, namely to protect individuals from arbitrariness. Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances.
These citations (and in particular the passages I have emphasised) clearly establish the principles relied on by the Secretary of State, the LAA and the Official Solicitor as to the ambit of Article 5 rights and thus the protection it gives from arbitrariness. Also it is well established that the protection is to be provided by a speedy and practically available remedy.
But there is nothing in these citations that indicate that the ways in which the domestic legislation enables the national public authorities to comply with and provide the rights, safeguards and guarantees provided by Article 5 has to be confined to those rights, safeguards and guarantees and cannot extend to and cover or address rights under other Articles of the Convention (e.g. Articles 3 and 8) or the domestic law.
Rather, in my view these citations show that it is open to the domestic law to provide a legal regime that complies with Article 5 without that domestic regime being confined to it or an exact mirror of it.
Indeed, this is recognised by the arguments advanced before me by the Secretary of State, the LAA and the Official Solicitor because they acknowledge that the domestic law does this under s. 4A(3) and so when the COP makes a welfare order applying the best interests test that authorises the relevant deprivation of liberty.
This recognition means that there is no free standing point based on the need for a speedy and practical remedy and the resolution of some best interests issues on treatment or conditions can take a long time and so they are not properly dealt with under the DOLS. Also it is the case that the resolution of some capacity and eligibility issues under the DOLS can take time – and some of them are very complicated.
The limits of the DOLS and s. 21A
As domestic law directed to the provision of the rights, safeguards and guarantees provided by Article 5 does not have to be so limited, the key is whether by enacting the DOLS and s. 21A Parliament limited what can be taken into account under them, and so when P is in a hospital or a care home but not elsewhere, to matters that engage the rights and guarantees conferred by Article 5.
The DOLS. In my view, on a literal construction:
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
the inclusion of a best interests test in that 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 the MCA for a person who lacks capacity to make that decision himself.
As I have said in paragraph 50 above as a matter of language, the determination of all three conditions (best interests, necessity and proportionality) has to involve consideration of the care and treatment proposed or provided. Even if the last two can be carried out by reference to the dividing line between physical freedom and detention such a limitation would run counter to a consideration of a person’s best interests even if ss. 1 and 4 of the MCA did not apply to it. But they do, and so the approach to the application of the best interests test referred to in paragraphs 51 and 60 to 62 above applies to the best interests condition within the definition of the best interests requirement and as I said in paragraph 52 above
By their terms and the application of (a) the principle in s. 1(6) that regard must be had to whether what is proposed or in place is the least restrictive option, and (b) the approach mandated by s. 4, the determination of the questions posed by the definition of the best interests requirement by paragraph 16 of Schedule A1 must involve a consideration of:
the impact of possible and available alternatives and issues of degree, and
as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so.
So that approach has to be applied to the consideration of whether it is in P’s best interests to be detained - for the purpose of giving care or treatment - in circumstances which amount to a deprivation of that person’s liberty. “Detained” is not defined and in my view as a matter of language the effect of the definition is to pose the question whether the circumstances which amount to a deprivation of liberty are in the best interests of P and not whether his detention or deprivation of liberty is in his best interests.
This accords with my view in the AM case that the DOLS apply when P may be being deprived of his liberty.
Equally in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.
Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.
So, in my view, the central issue in this case, namely whether the 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 interests condition within the definition of the best interests requirement.
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 from liability under s. 5 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.
Section 21A. The language of s. 21A is broad in that it enables the COP to “determine any question relating to” any of the following matters listed in s. 21A (2) (a) to (d) (see paragraph 65 above).
If the assessment of the best interests requirement is limited in the way submitted by the Secretary of State, the LAA and the Official Solicitor I consider that the best interests test that they say should be carried out by the COP in determining the CANH issue for the purposes of making orders and /or declarations under other sections of the MCA is related to all of those matters.
Firstly it is related to the best interests condition of the best interest requirement for the reasons set out in paragraph 92 above.
Additionally, it provides the answers or information relevant to the answers to the questions of:
the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit),
the purpose of the standard authorisation, namely whether the treatment should or should not include CANH, and
conditions of the standard authorisation (e.g. about preparations to be made for a move).
Those answers inform what the COP can order under s. 21A (3) by way of variation or termination of the standard authority itself or by direction to the supervisory body.
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:
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
could vary to add conditions about plans to be made about Mr Briggs’ needs.
I have mentioned above (see paragraphs 72 to 76 above) issues relating to the termination of the standard authorisation will remain live and will turn on the answer to the CANH issue. These issues relate to the period that the standard authorisation remains in force and what orders should be made under s. 21A(6) and (7).
This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:
inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and
inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).
A purposive approach – the intention of Parliament
The argument of the Secretary of State that was expressly adopted by the LAA is that it was not the intention of Parliament that issues of medical treatment should be resolved by authorisations under the DOLS or granted under s. 21A, and that this is confirmed by:
the legislative history and purpose of the MHA 2007,
a Ministerial statement,
Explanatory Notes published alongside the MHA 2007, and
Paragraph 5.10 of the Deprivation of Liberty Code of Practice.
I do not accept that the Ministerial statement made by Baroness Ashton on the Mental Health Bill at the Committee Stage of the House of Lords on 29 January 2007 is admissible, as asserted, under the approach taken in Pepper v Hart [1993] AC 593 or otherwise. But on the assumption that it is, in my view, it and the other matters relied on do not assist.
The essential reason for this is that as I have explained above the language of the legislation makes it clear that a course of medical treatment is not authorised by a DOLS authorisation. Rather:
absent court order, during the life of a DOLS authorisation the medical treatment is founded on what the treating team conclude is in P’s best interests (see s. 5), and
a welfare order under s. 16 directed to such treatment is also based on a best interests test and gives a substituted consent to it.
So the authorisation of the deprivation of liberty is separate and distinct (even if the welfare order gives a substituted consent for it) and this accords with what the Minister said and the parts of Notes and the Code relied on.
More generally the matters relied on:
all relate to the introduction of ss. 4A, 4B and 16A into the MCA and so to all of the routes to the authorisation of a deprivation of liberty, and ultimately to a decision by the COP, and
indicate the importance of the distinctions between authorising a deprivation of liberty created by a regime of treatment, support and care through the best interests test (applying s. 5 and 6 or s. 16) and the intention (per Baroness Ashton) that the MCA should lead to greater involvement in decision making by the person involved and ensure that what is decided is genuinely in the person’s best interests and that, as far as it can be, the decision made is similar to that which the person would have made if they were able to.
And, in my view, these points indicate that it would be surprising if Parliament had considered that the issues to be taken into account by the COP should be different if the case came before it following a DOLS authorisation, or in a case in which such an authorisation could have been but was not given, or pursuant to ss. 4(A)(3) (the making of a welfare order) or s. 4B (necessary for life sustaining treatment whilst a decision of the COP is sought).
Rather, it seems to me that these factors show that Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor.
Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA (see paragraphs 28 and 29 above).
To my mind therefore the passages relied on by the Secretary of State support the view that Parliament intended that the best interests condition and s. 21A should be applied in the way I have set out above rather that the limitations on their application urged by the Secretary of State, the LAA and the Official Solicitor.