Court of Protection case law update

Ben Troke and Rebecca Fitzpatrick round up the latest key cases in the Court of Protection.

Recent cases have shed some light on the need for proceedings for withdrawal of clinician assisted nutrition and hydration (CANH) at the end of life; the meaning of deprivation of liberty (DoL) in an acute medical setting; the role of a litigation friend, and the care needed over media coverage.

DoL in hospital and withdrawal of CANH

In Ferreira in January 2017, the Court of Appeal took the chance – in a challenge to a coroner’s interpretation of 'state detention' for the question of whether a jury was needed for an inquest – to push back on the 'mechanistic' application of the definition of deprivation of liberty in an acute medical setting. Just because someone was in an intensive care unit (ICU), as in that case, it did not mean that they were 'under continuous supervision and control and not free to leave' for the purposes of the 'acid test' of the Supreme Court case of Cheshire West defining deprivation of liberty (DoL). Instead, the court said, 'life saving treatment' will not typically be a DoL unless, perhaps, the treatment is not the same as any patient would get, regardless of (pre-existing?) lack of capacity.

While many will welcome the confirmation – affirming a great deal of local practice – that not everyone in ICU who lacks capacity to consent to the treatment and care there is necessarily deprived of their liberty in a way that needs authorisation, it does leave us with the question of where, then, we draw the line in the continuum of care / residence as the point where Cheshire West does bite.

Two recent cases have pushed the point further, both in the context of withdrawal of care at the end of life. We have covered the Briggs case previously, in which Mr Briggs’ wife argued for withdrawal of artificial nutrition and hydration from him, in his best interests, and ultimately the court agreed, and he died before the case could be taken to the Court of Appeal by the Official Solicitor. Alongside the substantive decision, the appeal was against the preliminary decision that it was acceptable that the case was framed as s21A proceedings – i.e. as a challenge to the DoLS authorisation that Mr Briggs was under, though the substance was the dispute about his medical treatment, simply as a device to secure the non-means tested legal aid which is attracted by s21A cases, but not other welfare proceedings.

At the end of July, we got the Court of Appeal judgment, which decries that practice, and expresses a strong view that public funding should be more readily available for such profoundly important disputes without such pretence. But the court also went further and commented that, in any case, after the Court of Appeal judgment in Ferreira:

“I find it hard to see how an argument could now be framed to the effect that Mr Briggs was being deprived of his liberty during the months he was in hospital and being cared for in a minimally conscious state….In my view, Ferreira confirms that I myself would regards as an obvious point, namely that the question of deprivation of liberty does not arise where a person who lacks capacity is so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore, by virtue of their physical condition, they are unable to leave the hospital.” (per Lady Justice King).

LJ King also held that not every case of withdrawal of CANH must necessarily come before the courts, notwithstanding Practice Direction 9E, which says that cases of withdrawal of artificial nutrition and hydration from patients in minimally conscious state (MCS) / permanent vegetative state (PVS) 'should' be brought to court for approval.

On 20 September 2017, a judgment by Mr Justice Peter Jackson covered much the same ground, and – perhaps – went a little further. In Re M, there was consensus between the family, and clinicians (including a second opinion) that it was no longer in the best interests of M (a 50 year old woman at the end of a “25 year decline” with Huntingdon’s disease) to continue receiving CANH (and in fact that had been the consensus since a best interests meeting in July 2016). When proceedings were eventually brought by M’s mother in April 2017, some months after the trust had approached its own solicitors, (again, framed as a s21A challenge to a DoLS authorisation) the judge found it easy to agree with the withdrawal of CANH but, of much wider significance, also went on to consider whether proceedings were required at all, in these circumstances.

Jackson J said that it was understandable that proceedings were brought in light of the Practice Direction and, of course, predating the Court of Appeal judgment in Briggs, but that this need not have been done. The Practice Direction (which is, incidentally under review) does not constitute a legal obligation, and “a decision to withdraw CANH, taken in accordance with the prevailing professional guidance … will be lawful…” with the role of the court reduced to resolution of any dispute.

In keeping with Briggs, Jackson J also took the chance to say that even if proceedings were required, it was inappropriate to use s21A, as if a challenge to a DoLS authorisation, as “a distortion of the legal framework” with a view to funding.

Importantly, he also referred to Ferreira and Briggs as sweeping away the “fiction” that “a person without any real awareness was being deprived of his liberty by virtue of receiving life sustaining treatment” and was pleased that “the court will never again be faced with absurd applications for a deprivation of liberty authorisation” in such circumstances.

This will bring further comfort to those who worried about the impact of Cheshire West being read literally into the most acute medical setting. But those who are trying to discern the line where the Cheshire West acid test reasserts itself may note with some dismay, the discrepancies between the precise terms in which each of these judgments describes the exception:

• “…the administration of life-saving treatment …” [so long as it is not the result of wrongful action of the state, and is substantially the same as would be offered to a person with capacity] – LJ Arden in Ferreira
• “a person who lacks capacity is so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore, by virtue of their physical condition, they are unable to leave the hospital.” - LJ King in Briggs
• “A person without any real awareness … receiving life sustaining treatment…” – Jackson J in Re M

For now perhaps, the most that can be said is that it is clear that the exception to Cheshire West need not be restricted to ICU or equivalent setting, and that greater concern as to the question of DoL will need to increase as you move along a continuum from the most acute life saving medical treatment through towards what might more fairly be described as residence, where Cheshire West most obviously squarely applies.

And NHS trusts in particular will be relieved that even if there may be a DoL in hospital, the door now seems firmly closed on the approach of using s21A challenges to any DoLS authorisation as a route to non means tested legal aid for proxy proceedings as a way to litigate any dispute about P’s medical treatment.

Litigation friend / P’s representative

In Re M, Jackson J also dealt with a question of whether it was appropriate that M’s mother was the litigation friend, rather than the Official Solicitor. On this issue, the case also carries the caveat that the Official Solicitor did make some written submissions, but was not represented at court to fully argue the point.

Nonetheless, it is significant that Jackson J accepted that M’s mother was an appropriate litigation friend in this case, despite her personal view about withdrawal of treatment, reinforcing the trend towards treating a close relationship with P and a firm view on their best interests as being a qualification, not a disqualification, from the role of their representative in proceedings. On this see also, as it happens, the judgment of DJ Bellamy in SCCG v MSA, coincidentally handed down on the same day as Re M on 20 September 2017, and covered in more detail here given the significance for the Re X process of the finding in that case that P’s mother was in principle a suitable Rule 3A representative notwithstanding her direct personal involvement in delivering the restrictive care. Had the judge accepted the Official Solicitor’s argument that in principle she should not be a Rule 3A rep in those circumstances, it would have been a further considerable spanner in the 'streamlined' works.

Delay

A couple more points are worth making from the Re M case in particular, expanding other strands of recent case law. One is the concern expressed by the judge that more than a year had passed between the consensus that it was no longer in M’s best interests to continue CANH, and that decision being implemented, following the court’s decision, when proceedings were eventually brought.

This ties in with another recent case – CH v A Metropolitan Council (28 July 2017) – which attracted significant press coverage as the court awarding £10,000 compensation to a man who was prevented from having sex with his wife by the local authority. Behind the headlines, the facts were a little more complex. CH was a 38 year old man with a learning disability and Down’s syndrome, who had married in 2010, and lived a 'normal' married life, albeit in his parents’ house. In 2014, the local authority, prompted by his attempt to access fertility treatment with his wife, obtained a psychologist’s assessment that he lacked capacity to make decisions about a sexual relationship. In March 2015, the local authority wrote to CH’s wife to inform her that she should desist their sexual relationship, which she did, moving into a different bedroom, to his great distress. Otherwise, it was said, various offences under the Sexual Offences Act 2003 would be committed.

The psychologist said that sex education was needed to help CH attain sufficient understanding to have capacity, but the local authority didn’t put this in place until June 2016 – i.e. a 15 month delay. By March 2017 he was assessed to have gained capacity, and the court authorised resumption of his sexual relationship in May 2017. Compensation was claimed on the basis that the support should have been in place within three months – i.e. there was a culpable delay of 12 months. The local authority accepted liability, and offered £10,000 in compensation (as well as an apology, £8,000 in legal costs, and £21,000 for the costs of the Court of Protection proceedings). The reported judgment was the court approval of that award as reasonable, since CH lacked litigation capacity.

Crucially, it was the local authority’s delay in putting steps in place to support CH that led to the liability, and there was no criticism of the assessment of capacity, or the actions taken to prevent the ongoing sexual relationship, despite the misleading headlines.

Press coverage

Picking up that issue, the press reported Re M as a judgment dealing with 'right to die cases', saying that these no longer need to go to court. Of course, that is very misleading. Aside from the decriminalisation of suicide (in 1961, but not – yet – of assisting suicide), there is no 'right to die'. That phrase tends to be used, more properly, in cases of patients with capacity making their own decision to end their life, but needing help to do so. As the work of the Court of Protection is increasingly opened to scrutiny and reported, it is useful to remember that the press coverage may need to be treated with a little caution, and that there is often a lot more behind the headlines, when the cases are read in detail.

Ben Troke and Rebecca Fitzpatrick are partners at Browne Jacobson. Ben can be contacted on 0115 976 6263 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Rebecca can be reached on 0330 045 2131 or This email address is being protected from spambots. You need JavaScript enabled to view it..