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MCA and DoLS case law updateJanuary 2017

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MCA and DoLS webinar

Case law update

18 January 2017

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• Re RD – the role of the RPR, more s21Acases?

• Briggs – end of life decision, legal aid ands21A

• SR v Bury CCG – costs• A local Authority v X - best interests and

resources

what will we cover?

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• Case law coming – MN; Ferreira; BCC v D;judicial review

• DOLS and Inquests – amendment passed• Law Commission - delayed

what will we cover?

when to bring a S21A case

• Re RD and others [2016] EWCOP 49 (4August 2016)

• 5 test cases – various facts – Baker J• when does RPR need to bring a s21A

challenge based on P’s wishes?

• Does P have capacity to ask forproceedings to be issued?

– Lower threshold than conductingproceedings

• Is P “objecting”?– P’s stated preferences– P’s behaviour

• It is not up to the RPR to make a “bestinterests” decision to override P’s wishes

Re RD and Others, para 86, per Baker

RPR should consider

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“a crucial role in the deprivation of libertyprocess, providing [P] with representationand support that is independent of thecommissioners and providers of the servicesthey are receiving”

Re RD and Others, para 32, per Baker J

role of the RPR

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Briggs – end of life decision• 20 December 2016 [2016] EWCOP 53

• PC Paul Briggs• RTA – multiple injuries, including to brain - MCS• Lacked capacity for decisions about care and

treatment• In a hospital under a DOLS authorisation• Survival dependent on Clinically Assisted

Nutrition and Hydration (CANH)

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competing views

• Clinical team - he should move to a rehabcentre and treatment should continue

• Mrs Briggs - treatment should end and heshould move to a palliative centre

• Official Solicitor, on behalf of Mr Briggs –defer decision 6 months for better idea ofprognosis

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“I have concluded that as I am sure that ifMr Briggs had been sitting in my chair andheard all the evidence and argument hewould, in exercise of his right of self-determination, not have consented tofurther CANH treatment, that his bestinterests are best promoted by the courtnot giving that consent on his behalf.”

Charles J – based on his wishes

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“This means that the court is doing onbehalf of Mr Briggs what he would havewanted and done for himself in what hethought was his own best interests if he wasable to do so.”

decision – based on his wishes

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Briggs – procedural point• 24 November 2016 [2016] EWCOP 48

• s15/16 – Court’s general power to makedeclarations / decisions about capacity /best interests

• s21A – Court’s power to decide challengesto a DOLS authorisation

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Briggs – procedural point

• Legal Aid – means tested / non-meanstested

• For s21A there is non-means tested legalaid; s15/16 cases are means tested

• LAA, DH and OS said this should be s15/16MCA

Charles J• Lawfulness of any DoL depends on it being

in P’s best interests• Artificial to consider that without looking

at the care and treatment needs whichlead to restrictions

• BIA must do so, COP must do likewise– NB the COP’s own decision and not an appeal

against reasonableness of BIA / SB

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potential implications?

• where a DOLS authorisation is in place,s21A proceedings can be used as a vehicleto challenge any aspect of the care planor treatment – ie access to non-meanstested legal aid?

• huge implications, especially if there aremore cases of DOLS in hospital (cfFerreira)

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• 16 December 2016 [2016] EWCOP 54

• Daughter’s application re withdrawal ofCANH – agreed by judge in 2015

• Usual rule in CoP is no order for costs butshe sought her legal costs back from theCCG – due to CCG’s conduct

• Hayden J awarded 50% of her costsagainst the CCG

SR v Bury CCG - Costs

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“Had the [Trust] brought the applicationitself she could have reasonably decided, asmany families do, to be an unrepresentedparty, effectively sheltering under the wingof the Official Solicitor or indeed the[Trust] itself. As an applicant she had noreal choice other than to be represented”

SR v Bury CCG - Costs

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best interests and resources

• A local authority v X, 25 October 2016[2016] Mr J Holman

• Long running case – re both capacity andbest interests

• Profound brain and spinal injuries –tetraplegia

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best interests and resources

• Wants to go home – “a trial of home careshall be considered and explored”

• cost of £468k pa (3x more than currenthospital placement)

• Local authority will not fund home care

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• “realistically, there are very few optionsopen”

• Capacity is in doubt but “potentiallyabstract”

• Legal costs £130k already – LA / LAA /Official Solicitor

Holman J

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• “Frankly, if the local authority areunwilling or unable to fund a safe packageof care within his own home, there is noother person or body who can, or will doso.”

• May be no options, regardless of capacity• Doubt as to need for further 4 day final

hearing on capacity / best interests

Holman J

“The very sad reality of this case and theplight of this person is that, for the rest ofhis life, he will inevitably be almost totallydependent upon the State for the provisionof all his most basic care and needs. It hasto be accepted that that care and thoseneeds can only be provided for within aframework that is realistically financiallyviable”

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case law coming…

• MN – Supreme Court (December 2016)• Ferreira – Court of Appeal (December 2016)• Birmingham City Council v D – Court of

Appeal (February 2017)• Judicial review on DOLS funding brought

against Department of Health by 4 localauthorities (March 2017)

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• if the deceased died “while in custody orotherwise in state detention”.

• then there must be an inquest (if only onpaper), but

• if such a death was violent or unnaturalor the cause of death is unknown thenthe inquest must be held with a jury

Coroners and Justice Act 2009

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• s48(2) – “A person is in state detention ifhe or she is compulsorily detained by apublic authority within the meaning ofsection 6 of the Human Rights Act 1998”

Coroners and Justice Act 2009

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• Interpreted by Chief Coroner to includethose who are under a DoLS authorisation(but not those as yet unauthorised) -(December 2014)

Coroners and Justice Act 2009

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• “unanticipated and unwantedconsequences of statute and case lawcombined …”

• …caseload of all coroners has substantiallyincreased “for no good purpose”.

• Proposes an amendment to Coroners andJustice Act 2009

Chief Coroner’s Annual Report 2015/16

Policing and Crime Bill 2017

• S155 - Amending Section 48 of theCoroners and Justice Act 2009

• “(2A) But a person is not in statedetention at any time when he or she isdeprived of liberty under section 4A(3)or (5) or 4B of the Mental Capacity Act2005.”– ie where a DoL is authorised [by DOLS, the COP

or emergency life sustaining treatment whileseeking a CoP order], the trigger for inquests /jury inquests ie disapplied

• Had been expected to propose draftlegislation by end of 2016.

• Now saying expect to publish “in March2017”:

– “Badly drafted, over complicated law is abig part of the problem with the currentDoLS, and we do not want to fall into thesame trap again”.

• Recognises pressures but better right thanquick, and delay is unlikely to affectimplementation date

the Law Commission….

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get in touch…

Please get in touch if you have any questionsor wish to discuss the topics we’ve coveredfurther…

ben.troke@brownejacobson.com | 0115 976 6263

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All information correct at time of production.

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