Court of Protection update – December 2016

Goodbye 2016 – Hello 2017: Interesting times in the Court of Protection

Best interests; personal choice over extending life; funding for court cases; allocation of resources; when is a “state detention” a “deprivation of liberty”: all issues very much under consideration in the Courts at the moment.  A busy end to 2016 promises an interesting start to 2017 and here we look forward to what awaits…….

……. But first (and because you might not read to the end!) all of us at Hempsons extend our best wishes and thanks to all of you in health and social care for all you have done in 2016.  Particular good wishes to those in work or on call over Christmas and the New Year and to all your families.

To see out 2016 this is just an end of year taster of some of the issues we will be looking at in more detail in 2017.

Best interests and the role of previously expressed views

Judgment has just been given by Charles J, in L Briggs v P Briggs and Others [2016] EWCOP 53.  This tragic case, deciding whether a policeman in MCS should continue to receive CANH or be allowed to die, is important for a number of reasons.

An earlier decision in the case said that issues about Mr Briggs’ treatment properly formed part of the consideration of whether he was appropriately deprived of his liberty.  Therefore the family were entitled to receive public funding and therefore, quite rightly, were able to have legal support and representation in these highly personal, emotional and complex proceedings.

The Judge allowed “tweeting” during the final Court hearing from 28 November to 1 December, leading to a significant increase in awareness of the case and the issues.  Whether this will be a regular occurrence remains to be seen.

In a typically thorough and comprehensive judgment Charles J decided that the compelling evidence from Mr Briggs’ family that he would not have wanted to continue to live in MCS outweighed the “very strong presumption in favour of preserving life”.  So it was not in Mr Briggs’ best interests that CANH be continued.  What does this mean for the importance of P’s previous views and wishes in determining best interests in other situations?

The 130 paragraphs of the judgment deserve careful consideration.  The case may also yet be appealed by the Official Solicitor.  We will bring you further comment in the New Year.

State detention and deprivation of liberty

Moving up to the Court of Appeal, not a Court of Protection case but with a potentially big impact on deprivation of liberty, the decision in R (LF) v HM Senior Coroner for Inner South London should also arrive in the New Year.  The case was heard on 13 and 14 December and involves an argument about whether a person who dies in an intensive care unit was in “state detention” for the purpose of inquest law.  The answer could impact on which patients in hospital are deprived of their liberty and therefore need a DoL authorisation, as well as whether inquests, potentially with juries, need to be held for more people who die in hospital, if they lacked the capacity to decide whether to be there.

Resource allocation: who decides the options available?

Climbing to the top of the judicial (Christmas) tree the Supreme Court spent 14 and 15 December hearing the case of Re MN and whether a refusal by a CCG to fund an aspect of potential care ought to remove the ability of the Court of Protection to consider that option when deciding P’s best interests.  In other words, does the Court of Protection have the ability to hint, or suggest, or recommend, or compel a commissioner of services to fund something it would not otherwise choose to fund.

This could have a major impact on service provision although, in fairness, the Supreme Court may feel the delivery of the judgment will have to take a back seat to the constitutional issues around Brexit, argued before it only a few days earlier.  Perhaps expect something around February/March, which will lead us nicely into……..

Law Commission proposals on deprivation of liberty authorisations

Delayed from the end of 2016 until March 2017 the hope is for a more streamlined and responsive framework. Interesting times indeed.

We will bring you comment and guidance as soon as events unfold but in the meantime, thanks for 2016, roll on 2017!


Court of Protection and Mental Capacity Act seminar, London, 9 February 2017

We would be delighted if you would join us for our free Court of Protection and Mental Capacity Act seminar.

This seminar is relevant to those involved in the application of the Mental Capacity Act in healthcare including continuing healthcare, acute and care sectors. We will cover key issues for practitioners, such as when applications to the Court of Protection need to be made and how to make them, deprivation of liberty and end of life/ serious medical treatment decisions.

Full details and sign up here.