Clarification Of DoLS Challenges And Funding – The Case Of Re Briggs


The Law Of... challenging a deprivation of liberty

As readers of the Court of Protection Handbook website may have already seen, the judgement of Mr Justice Charles, Vice President of the Court of Protection, has been published in the case Re Briggs, providing helpful guidance and discussion on s.21A Deprivation of Liberty Safeguards (DoLS) challenges.

Clarification Of DoLS Challenges And Funding – The Case Of Re Briggs

Zena Soormally, Solicitor for Simpson Millar's Court of Protection team, explores some of the important points made in the judgement.

What Does The Judgement State?

Although the judgment made a variety of relevant and interesting points, some of the key topics are covered below:

1. Can P And The Relevant Person's Representative (RPR) Both Have Non-Means Tested Legal Aid?

In the judgment, Mr Justice Charles noted that:

32. "[…] 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."

Although the above is a provisional view and not part of what the judge actually held, the judicial clarity reaffirms Simpson Millar's view that both the person appointed as RPR and the person subject to the deprivation of liberty authorisation can obtain non-means tested legal aid funding to challenge the deprivation of liberty.

"This view is in line with our experience of DoLS challenges to date" Zena comments.

"It should be noted that each case is different and it may be that arguments will have to be made on this point, with the support of the above, if the Legal Aid Agency attempts to find otherwise on a specific case" she adds.

2. Can A RPR And/Or The Person Subject To The Authorisation Get Non-Means Tested Funding In Relation To The Elements Of The Challenge That Relate To The Best Interests Test That's Applied Whenever A Decision Has To Be Made Pursuant To The Mental Capacity Act (MCA)?

As set out at the start of the judgment:

1. "...The hearing…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)."

2. "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."

Although the full explanation is set out later in the judgment, including the arguments made on behalf of each party to the proceedings, and the court's more fully explained rationale, Mr Justice Charles concluded:

6. "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":

  • i) 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
  • ii) 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."

He then went on:

33. "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."

34. "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."

He continued:

38. "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 [N.B. this might mean ‘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":

  • i) what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, and
  • ii) 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."

Finally, he concluded:

87. "The DOLS. In my view, on a literal construction:

  • i) 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
  • ii) 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.

88. "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 […]"

89. "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."

The answer in this case is yes; although the issue of serious medical treatment is not one that, alone, would allow a person to obtain non-means tested legal aid funding, the issue (as well as other best interests questions, e.g. residence and care questions) is part and parcel of the underlying best interests considerations upon which any deprivation of liberty is assessed, pursuant to the DoLS.

3. An Update On What Is Happening In The NRA/JM Cases Involving Rule 3A Representatives And Deprivations Of Liberty In The Community

In relation to these cases, Mr Justice Charles found:

39. "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:

  • i) in that type of case the COP cannot lawfully authorise the deprivations of liberty, and so
  • ii) such cases are being stayed, and
  • iii) 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"

40. "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."

In summary, Zena notes: "Not a great deal is currently happening, as there is an impasse as to who is responsible for funding. This impasse has the very serious result that thousands of people are currently being unlawfully deprived of their liberty, as no authorisations are in place."

4. Is A s.21A Application To Be Determined On Public Law Grounds (I.e. Did The Supervisory Body Get It Wrong?) Or By The Court Of Protection Considering The Issue Itself?

As per the judgment:

66. "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)."

67. "So under s.21A, the COP does not take an administrative law or appellate approach."

In other words, the Court of Protection will decide the issue itself, rather than undertaking an administrative law approach to the question.

Zena comments on the judgment:

"Even though I’m sure those involved in the proceedings will shortly provide more analysis of the judgment, including 39 Essex Chambers in their helpful newsletter, I thought it would be helpful to outline the key points made in this case as soon as possible."

"From the point of view of our Court of Protection team, who are instructed in relation to s.21A applications on a day-to-day basis for a variety of clients, we welcome this decision and recommend the judgment as key reading for any professional advocates and/or family members of those involved in Court of Protection proceedings."

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