In the matter of Paul Briggs – COP 12942115


Mr Briggs suffered a serious brain injury following a road traffic accident. As a result, he was in a minimally conscious state and did not have the capacity to make decisions relating to his care and treatment. He was deprived of his liberty in the Walton Centre receiving a package of care which included being given clinically assisted nutrition and hydration (CANH). Without it, he would die.

Mr Briggs’ treating team felt it was in his best interests to move to a rehabilitation unit and continue receiving CANH; Mrs Briggs’ (and ‘Relevant Person’s Representative’ under the standard authorisation which was depriving Mr Briggs of his liberty), felt it was in his best interests to move to a hospice and receive palliative care. These court proceedings were brought by Mrs Briggs to the Court of Protection under Section 21A of the Mental Capacity Act 2005.

Mr Justice Charles was required to examine the question of whether issues of serious medical treatment under the Deprivation of Liberty Safeguards could be dealt with by the Court of Protection under Section 21A.

Eligibility for legal aid

All parties in the cases were in agreement that the Court of Protection could make decisions on the issues before it, however the technical question of which sections of the Mental Capacity Act 2005 such decisions come under was vital because of its impact on the availability of Legal Aid for Mrs Briggs.

Non-means-tested Legal Aid means that a person is automatically entitled to and eligible for it, regardless of their financial situation, and is only available when court proceedings are brought under Section 21A. Proceedings brought under any other section of the Mental Capacity Act 2005 (for example, Section 16 proceedings which relate to best interests) only receive means-tested Legal Aid meaning that the person would have to have undergo a financial assessment to check that their savings and income are within certain limits to be eligible for Legal Aid.

As a result of this rule, if the application was not brought under Section 21A, Mrs Briggs would not have been entitled to non-means tested Legal Aid and her income and savings would have deemed her ineligible for means-tested public funding. However, Mrs Briggs would also have not been able to afford to pay for legal representation privately and so she would have had to go before the Court of Protection as a litigant in person.

Mr Justice Charles acknowledged this, and noted that the overriding objective (Rule 3 COP Rules 2007) promotes Mrs Briggs having legal advice and representation to put her on an equal footing with the other parties. However, he concluded that the main question revolved not around on whether Mrs Briggs would otherwise be represented, but on whether the issues in question (i.e. serious medical treatment under a deprivation of liberty) could be properly considered under Section 21A [42].

Serious medical treatment under the Deprivation of Liberty Safeguards

The question being brought before the Court of Protection was whether CANH was in Mr Briggs’ best interests.

Section 21A allows the court to consider issues relating to a person’s deprivation of liberty, such as:

(a) whether the relevant person meets one or more of the qualifying requirements

(b) the period during which the standard authorisation is to be in force;

(c) the purpose for which the standard authorisation is given;

(d) the conditions subject to which the standard authorisation is given.

It was argued by the Secretary of State, the Legal Aid Agency and the Official Solicitor, that Section 21A proceedings were exclusively for considering questions of Mr Briggs’ ‘physical liberty’ [36], and not the conditions of his deprivation of liberty. Since, whatever decision was made by the Court regarding treatment, Mr Brigs would still be deprived of his liberty, these parties saw this purely as a question of welfare and best interests under a different section of the Mental Capacity Act.

Mr Justice Charles agreed that the conclusion of Court of Protection proceedings would be an order as to whether CANH was in Mr Briggs best interests under Section 16(2) of the Mental Capacity Act 2005. However, he recognised that any decision made on treatment would have a direct effect on Mr Briggs’ existing deprivation of liberty authorisation. He also noted that the Deprivation of Liberty Safeguards assessments requires a best interest assessment which takes into account planned care and treatment and therefore the Court has the authority to consider these as well.

What this means

This opens the door on Relevant Person’s Representatives (known as ‘RPRs’) of those under a standard authorisation to get access to legal advice and representation when challenging best interest decisions such as care packages and medical treatment under non-means-tested legal aid.