This document summarizes key cases and legal developments related to the Mental Capacity Act and Deprivation of Liberty Safeguards from January 2017. It discusses cases related to the role of the Relevant Person's Representative, end of life decisions, costs awards, consideration of resources in best interests decisions, and upcoming cases. It also notes passed and proposed amendments related to inquest requirements for those under DoLS authorizations. The document aims to update professionals and promote further discussion on these important topics.

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MCA and DoLS case law update
January 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 s21A
cases?
• Briggs – end of life decision, legal aid and
s21A
• 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?

5. when to bring a S21A case
• Re RD and others [2016] EWCOP 49 (4
August 2016)
• 5 test cases – various facts – Baker J
• when does RPR need to bring a s21A
challenge based on P’s wishes?

6. • Does P have capacity to ask for
proceedings to be issued?
– Lower threshold than conducting
proceedings
• Is P “objecting”?
– P’s stated preferences
– P’s behaviour
• It is not up to the RPR to make a “best
interests” 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 liberty
process, providing [P] with representation
and support that is independent of the
commissioners and providers of the services
they 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 rehab
centre and treatment should continue
• Mrs Briggs - treatment should end and he
should move to a palliative centre
• Official Solicitor, on behalf of Mr Briggs –
defer decision 6 months for better idea of
prognosis

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“I have concluded that as I am sure that if
Mr Briggs had been sitting in my chair and
heard all the evidence and argument he
would, in exercise of his right of self-
determination, not have consented to
further CANH treatment, that his best
interests are best promoted by the court
not giving that consent on his behalf.”
Charles J – based on his wishes

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“This means that the court is doing on
behalf of Mr Briggs what he would have
wanted and done for himself in what he
thought was his own best interests if he was
able 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 make
declarations / decisions about capacity /
best interests
• s21A – Court’s power to decide challenges
to a DOLS authorisation

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Briggs – procedural point
• Legal Aid – means tested / non-means
tested
• For s21A there is non-means tested legal
aid; s15/16 cases are means tested
• LAA, DH and OS said this should be s15/16
MCA

15. 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 which
lead 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 vehicle
to challenge any aspect of the care plan
or treatment – ie access to non-means
tested legal aid?
• huge implications, especially if there are
more cases of DOLS in hospital (cf
Ferreira)

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• 16 December 2016 [2016] EWCOP 54
• Daughter’s application re withdrawal of
CANH – agreed by judge in 2015
• Usual rule in CoP is no order for costs but
she sought her legal costs back from the
CCG – due to CCG’s conduct
• Hayden J awarded 50% of her costs
against the CCG
SR v Bury CCG - Costs

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“Had the [Trust] brought the application
itself she could have reasonably decided, as
many families do, to be an unrepresented
party, effectively sheltering under the wing
of the Official Solicitor or indeed the
[Trust] itself. As an applicant she had no
real 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 and
best interests
• Profound brain and spinal injuries –
tetraplegia

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best interests and resources
• Wants to go home – “a trial of home care
shall be considered and explored”
• cost of £468k pa (3x more than current
hospital placement)
• Local authority will not fund home care

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• “realistically, there are very few options
open”
• Capacity is in doubt but “potentially
abstract”
• Legal costs £130k already – LA / LAA /
Official Solicitor
Holman J

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• “Frankly, if the local authority are
unwilling or unable to fund a safe package
of care within his own home, there is no
other person or body who can, or will do
so.”
• May be no options, regardless of capacity
• Doubt as to need for further 4 day final
hearing on capacity / best interests
Holman J

23. “The very sad reality of this case and the
plight of this person is that, for the rest of
his life, he will inevitably be almost totally
dependent upon the State for the provision
of all his most basic care and needs. It has
to be accepted that that care and those
needs can only be provided for within a
framework that is realistically financially
viable”

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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 local
authorities (March 2017)

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• if the deceased died “while in custody or
otherwise in state detention”.
• then there must be an inquest (if only on
paper), but
• if such a death was violent or unnatural
or the cause of death is unknown then
the inquest must be held with a jury
Coroners and Justice Act 2009

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• s48(2) – “A person is in state detention if
he or she is compulsorily detained by a
public authority within the meaning of
section 6 of the Human Rights Act 1998”
Coroners and Justice Act 2009

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• Interpreted by Chief Coroner to include
those 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 unwanted
consequences of statute and case law
combined …”
• …caseload of all coroners has substantially
increased “for no good purpose”.
• Proposes an amendment to Coroners and
Justice Act 2009
Chief Coroner’s Annual Report 2015/16

29. Policing and Crime Bill 2017
• S155 - Amending Section 48 of the
Coroners and Justice Act 2009
• “(2A) But a person is not in state
detention at any time when he or she is
deprived of liberty under section 4A(3)
or (5) or 4B of the Mental Capacity Act
2005.”
– ie where a DoL is authorised [by DOLS, the COP
or emergency life sustaining treatment while
seeking a CoP order], the trigger for inquests /
jury inquests ie disapplied

30. • Had been expected to propose draft
legislation by end of 2016.
• Now saying expect to publish “in March
2017”:
– “Badly drafted, over complicated law is a
big part of the problem with the current
DoLS, and we do not want to fall into the
same trap again”.
• Recognises pressures but better right than
quick, and delay is unlikely to affect
implementation date
the Law Commission….

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get in touch…
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
ben.troke@brownejacobson.com | 0115976 6263

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All information correct at time of production.
The information and opinions expressed within this document are no
substitute for full legal advice. It is for guidance only and illustrates the
law as at the published date. If in doubt, please telephone us on 0370 270
6000.
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