Director of Legal Aid Casework & Ors v Briggs

Mental Capacity Act 2005, section 21A concerns whether a deprivation of liberty is itself in an incapacitated person’s best interests, necessary and proportionate. It does not provide an alternative route for determining medical treatment or other personal welfare questions where deprivation of liberty is not the real issue.

Undisputed treatment may be provided under section 5. A treatment dispute, including whether clinically assisted nutrition and hydration should be withdrawn, must be determined under sections 15–17. Life-saving treatment does not generally deprive a patient of liberty where the patient’s physical illness, rather than state action, prevents departure from hospital. Any distinct deprivation of liberty resulting from treatment must, however, be lawfully authorised.

Mr Briggs sustained a traumatic brain injury and remained in a minimally conscious state. His family and treating team disagreed about whether clinically assisted nutrition and hydration should continue. The NHS trust applied under section 16 of the Mental Capacity Act 2005, while Mrs Briggs made a section 21A application because that route attracted non-means-tested legal aid.

Charles J held that section 21A was broad enough to encompass the treatment question: [2016] EWCOP 48. He subsequently determined that continued treatment was not in Mr Briggs’ best interests. Mr Briggs died after permission to appeal was granted, but the Court of Appeal heard the appeal because the statutory issue was of continuing importance.

The central question was whether section 21A and the deprivation of liberty safeguards provide an alternative means of determining serious medical treatment questions.

1. Appeal allowed unanimously. Section 21A of the Mental Capacity Act 2005 concerns the validity and terms of a deprivation of liberty authorisation. It does not provide a duplicate route for deciding personal welfare or medical treatment questions when deprivation of liberty is not the real or essential issue. The limited remedies in section 21A(3), namely varying or terminating the authorisation, reinforce that construction.

2. The statute had to be interpreted purposively and within its historical context. Schedule A1 and section 21A were introduced to remedy the absence of safeguards identified under article 5 of the Convention. The existing sections 15–17 already provided a complete route for personal welfare and treatment decisions. The Explanatory Notes and statutory codes confirmed that a deprivation of liberty authorisation relates to detention, not authority to give treatment.

3. Best interests is decision-specific. Under Schedule A1 paragraph 16, the relevant question is whether it is in the person’s best interests to be a detained resident, and whether detention is necessary and proportionate to prevent harm. It is not whether every aspect of the care or treatment delivered during detention is in that person’s best interests.

4. A best-interests assessor must examine the relevant circumstances and the contents of the care plan. Conditions may address matters, such as contact, which directly affect whether detention remains in the person’s best interests. The assessor cannot determine serious clinical treatment questions or impose conditions unrelated to deprivation of liberty. An unresolved treatment dispute may instead justify limiting the duration of an authorisation while the treatment issue is referred to the court.

5. Where treatment is undisputed, clinicians may decide and act under section 5. Where treatment is disputed, especially where withdrawal of clinically assisted nutrition and hydration is in question, the court should determine the matter under sections 15–17. If implementing treatment creates a distinct deprivation of liberty, that deprivation must separately be authorised under Schedule A1 or by a court order under section 4A.

6. Following Ferreira [2017] EWCA Civ 31, life-saving treatment does not generally amount to deprivation of liberty where the patient’s illness, rather than state restraint, prevents departure from hospital. Mr Briggs therefore required no standard authorisation, and the treatment dispute could only properly have proceeded through the conventional personal welfare jurisdiction.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court held that section 21A did not provide the appropriate route for determining whether clinically assisted nutrition and hydration should continue: [2017] EWCA Civ 1169.

2. Court of Protection: Charles J determined the preliminary issue in Mrs Briggs’ favour, holding that the proceedings were properly brought under section 21A of the Mental Capacity Act 2005: [2016] EWCOP 48. He later determined that continued clinically assisted nutrition and hydration was not in Mr Briggs’ best interests.