In the final part of the sad saga regarding the withdrawal of artificial nutrition and hydration from a brain injured man in MCS, the Court of Appeal have now made it clear in Director of Legal Aid Casework & Ors v Briggs  EWCA Civ 1169 that seeking an order under section 21A of the MCA is not a legitimate way of seeking a best interests declaration in respect of serious medical treatment. King LJ said at :
“…in my judgment s.21A goes to a consideration of whether the detention or deprivation of liberty is itself in P’s best interests and, whilst 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.”
Whilst the Court recognised the overall benefit in families being adequately represented when “addressing difficult issues at acutely traumatic times in their lives” , this decision clearly delivers a fatal blow to those who are reliant on non-means-tested legal aid to bring – or participate effectively in – applications involving the withdrawal or withholding of life sustaining treatment.
It should also be noted that the Court affirmed the decision in Ferreira v HM Senior Coroner for Inner South London and Others  EWCA Civ 31 – see our blog post, here – and observed that as Mr Briggs was not being deprived of his liberty during the months he was in hospital a standard authorisation was neither necessary nor appropriate. Accordingly, the only available route open to Mrs Briggs in seeking approval of the withdrawal of CANH should have been an application pursuant to s.16 MCA. King LJ observed at :
“In my view, Ferreira confirms what I myself would regard 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. It may be the case however that as the treatment progresses and P’s physical condition improves, his or her ongoing care becomes a deprivation of liberty and, at that stage, a standard authorisation or court order will be required if the continued retention of P on the ward is not to become unlawful.”
Although the point was not argued at first instance or in the Court of Appeal, King LJ appears to have accepted the position put forward on behalf of the Health Secretary in Ferreira that a person with a prolonged disorder of consciousness who is receiving life-sustaining treatment in hospital falls outside the scope of Article 5(1) and is not being deprived of their liberty. Whilst obiter, this extends Ferreira beyond urgent life-saving treatment in the ITU setting to include all cases where a person is a risk of dying if they do not receive treatment in hospital. The position of a person in a PVS or MCS who could receive life-sustaining treatment other than in a hospital setting has not yet been expressly considered by the court (although there are many such patients living in care homes and in the community); and the approach of the court to Art 5 should a public body resist a family’s request to remove a relative in PVS/MCS from hospital to be cared for at home remains to be seen.
Of even greater significance to medical practitioners and those advising them are the obiter comments of King LJ and Sir Brian Leveson P regarding whether there is the need to bring cases before the court where a decision is to be made about the withdrawal of clinically assisted artificial nutrition and hydration (CANH).
King LJ noted that there is an apparent inconsistency between paragraph 5(a) CoP Practice Direction 9E which stipulates that decisions about the proposed withholding of CANH from a person in a PVA or MCS should be brought before the court and paragraph 5.53 the Mental Capacity Code of Practice which states that an application should be made “where there is any doubt about the patient’s best interests.” However, King LJ observed at :
“Insofar as the Code and the Practice Direction appear to be inconsistent the one with the other, it is the Code which must therefore take precedence. In reality virtually all of these traumatic decisions are made by agreement between the families and the treating teams of the person involved. To suggest that every case should go before a judge (even where all concerned are in accord as to what was in the best interests of the patient) would not only be an unnecessary pressure on the overstretched resources of the NHS Trusts and add to the burden on the courts but, most importantly, would greatly add to the strain on the families having to face these unimaginably distressing decisions. In my judgment, the Practice Direction provides valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court.”
“…i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA
ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.” (emphasis added)
Whilst the comments of the Court of Appeal in Briggs – that there is no requirement to make an application to the court in the absence of a dispute or doubt as to whether the withdrawal of CANH is in the best interests of the patient – echo those of the Court in Burke, the authors wish to raise a note of caution. Before casting aside PD 9E and the Royal College of Physicians’ 2013 Guidance on Prolonged Disorders of Consciousness, which mandate an application to the court before withholding or withdrawing CANH from patients in PVS or MCS, it should be borne in mind that:
- There was no argument before the Court of Appeal on this issue in Briggs. The comments made by King LJ do not form part of the ratio of the case and are clearly obiter.
- The similarly obiter comments of Lady Hale in N v ACCG  UKSC 22 (with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes all agreed) suggest that it is the seriousness of the decision, not the existence of a dispute that requires the application to court.
It hardly needs to be said that the decision to withdraw CANH or any other form of life sustaining treatment is one of the most serious decisions that can be taken. Importantly, the recent obiter dicta of the Court of Appeal beg the question of what doubt is and whether it is to be subjectively or objectively assessed. The reported judgments of the Court of Protection in PVS/MCS cases demonstrate that doctors and family members can be wrong in relation to diagnosis and prognosis (St George’s Healthcare NHS Trust v P & Q; W v M) and even where there is initially agreement between the parties, when the evidence is tested, the court may reach a different view as to whether withdrawal of CANH is in a patient’s best interests (W v M and Re E).
The authors are aware of a case that is currently before the court in which the Judge has invited detailed written submissions on this very issue. Although it is not yet known whether the Judge will decide to give a judgment on the point, it is likely that the comments made in Briggs will not be the last word. Until a decision is taken by Parliament or a case is brought that allows for full argument at appellate level, the authors consider that Briggs should not be taken to signify the end of the need to apply to the Court of Protection in cases where there is no dispute that it is in the best interests of P to withdraw or withhold life-sustaining treatment. After all, the whole purpose of bringing a case before the court is to protect P, and where research has shown that there is a rate of misdiagnosis of PVS of over 40%, can it ever be said by the treating team and the family that there is no doubt as to whether withdrawal of CANH is in P’s best interests?
 Para 105
  EWCA Civ 1003, at paras. 67-80.
 At para. 38
  EWCOP 42
  EWHC 2443 (Fam)
  EWCOP 1639