Currently, the law doesn’t allow a single parent with a child born via surrogacy to obtain a parental order, leaving their family legally vulnerable.
Personal Injury analysis: Sheree Green, a senior associate at Anthony Collins Solicitors, says the Court of Appeal’s decision in Briggs means that, going forward, where the central issue to be determined relates to the giving or withdrawal of life sustaining treatment, the application must be brought under section 16 of the Mental Capacity Act 2005 (MCA 2005).
Director of Legal Aid Casework and others v Briggs  EWCA Civ 1169. The original proceedings considered whether it was in the best interests of PC Briggs to continue to receive life sustaining treatment. PC Briggs had been in a road traffic accident and had suffered a severe brain injury as a result and was in a minimally conscious state.*
What is the significance of this case, and why is it important for practitioners?
Readers will be familiar with the sensitive issues and difficult circumstances that underpinned this case. PC Paul Briggs sustained a traumatic brain injury in a road traffic accident in July 2015 and was in a minimally conscious state. There was a disagreement between PC Brigg’s wife, Lindsey Briggs, and the clinical team as to which course of action would be in PC Briggs’ best interests—whether or not to continue giving clinically assisted nutrition and hydration (CANH). (PC Briggs had not made an advance decision or appointed an attorney under a welfare lasting power of attorney.)
On 20 December 2016, Mr Justice Charles ruled that it was not in PC Briggs’ best interests to continue to receive CANH. Permission to appeal was subsequently granted.
On 31 July 2017, PC Briggs having died earlier in the year, the Court of Appeal held a full hearing, to consider whether Lindsey Briggs had in fact been entitled to bring proceedings under MCA 2005, s 21A, which included consideration of a serious medical treatment issue. Section 21A proceedings attract non-means-tested public funding, so Mrs Briggs had the benefit of leading and junior counsel, paid for under the terms of her legal aid certificate.
The matter had initially been brought to the court’s attention by the treating NHS trust, under an application pursuant to MCA 2005, s 16 (and in accordance with the relevant Practice Direction 9A). Means-tested public funding only is available for MCA 2005, s 16 proceedings.
Three key issues were explored by the justices in the appeal:
- Does the situation whereby, as a consequence of receiving life sustaining treatment, P is unable to leave hospital, mean that P is deprived of his liberty (for the purposes of the European Convention on Human
- Rights (ECHR), art 5(1)?
- Is it appropriate to use MCA 2005, s 21A, where the main issue is whether CANH should continue or be withdrawn?
- Should an application to the court be made in all cases where withdrawal of CANH is proposed, or only where there is a dispute as to whether this is in the best interests of the patient?
How helpful is the judgment in clarifying the law in this area? Are there any grey areas or unresolved issues remaining?
The judgment found that Mr Justice Charles had been in error in finding Mrs Briggs’ application under MCA 2005, s 21A, appropriate in these circumstances. Lady Justice King commented that:
‘section 21A goes to a consideration of whether the detention or deprivation of liberty is itself in P’s best interests and, while 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.’
She referred to the earlier case of Ferreira v HM Senior Coroner for Inner South London and others  EWCA Civ 31, and held that a deprivation of liberty does not in fact 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 LexisNexis®PSL are unable to leave the hospital’. She concluded 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’.
This means that, going forward, where the central issue to be determined relates to the giving or withdrawal of life sustaining treatment, the application must be brought under MCA 2005, s 16, and only means-tested legal aid will be available to any parties to the proceedings.
While this question formed the basis of the appeal, the justices also commented that if the medical treatment was not in dispute, then irrespective of whether the decision related to the withdrawal of treatment from a patient either in a persistent vegetative state or in a minimally conscious state, it was a decision for the treating clinicians to take (who will have immunity under MCA 2005, s 5). If there is doubt or a dispute, then the case should be referred to the court under MCA 2005, ss 15–17.
This offers some comfort to medical professionals and families, with the prospect of avoiding stressful, time consuming and expensive legal proceedings where there is agreement regarding the withdrawal of CANH. However, the comments appear to be at odds with the ‘instruction’ within Practice Direction 9E, 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…and should be brought before 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’
This potential conflict was resolved by the court noting that a Practice Direction will always be trumped by a statutory code, which requires anyone exercising formal power under MCA 2005 to ‘have regard to its provisions’.
Paragraph 5.36 of the MCA Code of Practice states:
‘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 person’s best interests.’
What did the court have to say about issues surrounding the distribution of legal aid funds in cases such as this?
Lady Justice King noted that many would find it ‘perturbing’ that only means-tested legal aid was available to respondents in these circumstances, but commented that the case before the court was ‘not about legal aid, but solely about the scope of s 21A MCA’.
Sir Brian Leveson P echoed Lady Justice King’s comments, maintaining that it was not for the court to determine how legal aid should be distributed. However, he further observed that it ‘may be appropriate to underline the difficulties that families such as the family in this case face, addressing difficult issues at acutely traumatic times’. If it can be demonstrated that the proceedings have merit, he suggested that ‘the public interest justification of adding financial pressures to the many others the affected families face’ was worthy of consideration.
What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?
When a case needs to be brought to court for a decision on whether the withdrawal of CANH is in the patient’s best interests, access to public funding is going to be limited. This means that many families will find it harder to secure legal representation to ensure their voice is heard—particularly in relation to their personal knowledge of the likely wishes of the patient on the matter.
To secure non-means-tested public funding, and properly bring the case before the court under MCA 2005, s 21A, a person must be deprived of their liberty for the purposes of ensuring they receive treatment that is in his or her best interests (not unable to leave hospital as a consequence of receiving life-saving treatment).
The case also serves as a reminder of the benefits of health and welfare planning. If PC Briggs had a valid and applicable advance decision, or had made a healthcare lasting power of attorney, which included authority for his attorneys to give or refuse consent to life sustaining treatment, an application to the court should have been unnecessary.
How does this case fit in with other developments in this area of law? Do you have any predictions for future developments?
This case touched on important legal, medical and ethical issues on which there are differing but strongly held views. How is the right to self-determination to be balanced with the sanctity of life? How is sanctity of life balanced with quality of life? The law will evolve as cases continue to come before the court.
The observations regarding the need to come to court only in cases of dispute could be considered obiter. Treating medical professionals and their legal advisors may still err on the side of caution in certain cases and apply to the Court of Protection, even where there is agreement. The ad hoc Court of Protection Rules Committee has been working on a revised Practice Direction 9E, but agreeing on a more appropriate provision is proving difficult. Mr Justice Charles issued a public note on 28 July 2017, following the last meeting of the committee, in which he concluded (inter alia):
- When the Rule and Practice Direction changes were made (now planned for 1 December 2017), an explanation of the course taken in respect of PD 9E should be given
- The BMA, the Law Society, the Ministry of Justice and the Ministry of Defence should and would discuss and create a working group to address the underlying issues and the giving of guidance. That work and its product would take account of developing authority and so would consider how the guidance produced could be readily updated (eg by reference to the decisions presently awaited from Jackson J and the Court of Appeal)
Sheree Green leads the firm’s Court of Protection team, which specialises in property and finance, and health and welfare Court of Protection work, as well as mental health. She is a Law Society approved mental health practitioner and chair of the Law Society Mental Health and Disability Committee.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This article was first published on Lexis®PSL
Personal Injury on 14 August 2017.
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*This paragraph has been edited to correct inaccurate information in the original version.
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