In this webinar Ben Troke covered the recent cases in relation to the Mental Capacity Act and Deprivation of Liberty Safeguards. In particular covert medication, Deprivation of Liberty (DoL) in hospitals, parents' rights, DoL in the community and the new CHC framework. View further information and resources on our website - https://www.brownejacobson.com/health

1. @BJhealthlaw
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MCA and DoL, case law update
webinar – May 2018

2. @BJhealthlaw
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MCA and DoL
Case law update
Thursday 3 May 2018

3. • withdrawal of CANH – Windsor CCG v SP
(20 April 2018)
• covert medication – AB (20 December
2016)
• testing for poison - Skripal (22 March
2018)
• DoL in Hospital – Alfie Evans (16 April
2018)
this session

4. • community DoL – Dorset CCG v LB (28
March 2018)
• commissioning responsibilities – new CHC
Framework October 2018.
• reform – government response and MHA
review interim report
• criminal conviction – MCA s44
this session

5. @BJhealthlaw
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• Windsor CCG v SP (20 April 2018)
• cardiac arrest aged 50 in October 2014
• consensus in PVS since then
• consensus not in best interests to
continue CANH
• must decision be made by the court?
withdrawal of CANH

6. • Re M (2017) – Jackson J held family and
clinicians can decide without Court
approval
• Briggs (2017) Court of Appeal – agree,
clinicians acting reasonably with family
agreement are covered by MCA s5
• Re Y (2017) – no authority for every CANH
case needing Court approval – but
Supreme Court appeal judgment
pending…
case law in flux

7. “the CCG has taken the precaution of
applying to the Court but invite the court to
deal with the application on the papers and
without a hearing”
Williams J

8. • Judge happy to do so – saving time and
expense, and notes consensus on capacity
and best interests
• endorses proposed plan for withdrawal of
CANH and palliative care
Williams J

9. • Re AB (20 December 2016)
• 2000 - AB HIV positive and agrees to
treatment
• 2008 – she became delusional due to
psychoaffective disorder
• active deception required, and approved
as being in her best interests
• weighing up of past and present wishes
covert medication

10. • Salisbury spy poisoning
• father and daughter in hospital and
unconscious – not possible to get consent
for taking blood for testing by OPCW
• considered on the basis of best interests –
– a “responsible citizen’s” interest in
administration of justice; and
– a small chance of information relevant to
treatment
Skripal case

11. @BJhealthlaw
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• Alfie Evans
• habeus corpus application – alleging
unlawfully deprived of liberty and in
breach of Alfie’s Article 5 rights
DoL in Hospital

12. @BJhealthlaw
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• 16 April 2018
• family argued Alfie has a right to self-
discharge, to be exercised by family,
being prevented unlawfully
• “under continuous supervision and
control and not free to leave”…
Court of Appeal judgment

13. @BJhealthlaw
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“in Ferreira the Court of Appeal decided
that a person is not being deprived of their
liberty where they are receiving treatment
and are physically restricted by their
physical infirmities and the treatment they
are receiving”
Court of Appeal – Ferreira

14. @BJhealthlaw
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“restrictions resulting from the
administration of treatment, because they
are “well known consequences of a person’s
condition, when such treatment is required”
do not amount to a deprivation of liberty”
- Arden LJ
Court of Appeal – Ferreira

15. • Alfie was not DoL
• “Even if there was a DoL, it would
clearly be lawful. Indeed the whole
purpose of the substantive proceedings
and the previous decisions by the court
were to determine whether the provision
of the proposed medical treatment at
Alder Hey would or would not be lawful.
…” (para 63)
Court of Appeal – Evans decision

16. “preventing them from removing Alfie from
hospital does not breach their rights.
Indeed it would breach Alfie’s right to have
decisions made as to what treatment he
should receive by application of the test of
his best interests” (para 67)
“The application for habeus corpus is wholly
misconceived [and is] dismissed”
http://myadultstillmychild.co.uk/
parents’ rights

17. • Dorset CCG v LB (28 March 2018)
• proposed as 4 cases to test if DoL:
– if someone meets the ‘acid test’ but
– is in their own home (whether cared for
by paid carers or family), and
– the restrictions are necessary and
proportionate, and if so
– whether responsibility for such a DoL rests
with the CCG due to CHC funding
DoL in the community

18. • test cases did not proceed, and the
Official Solicitor sought a costs Order
against the CCG
• rejected by Baker J
• “the law concerning deprivation of
liberty under the MCA is in a state of
some uncertainty”
DoL in the community

19. • “understandable that the CCG sought
guidance on the impact of the “acid
test” on Ps living at home” given the
large numbers
• the CCG had behaved reasonably in
withdrawing the application - once it had
seen the OS submissions, and the Law
Commission report
DoL in the community

20. In effect October 2018; Paras 320-322.
“Where the individual who lacks capacity is
in receipt of NHS Continuing Healthcare in
their own home, including tenancy based
accommodation (e.g.supported living), and
is subject to restrictions that may
constitute a deprivation of liberty, the
deprivation of liberty cannot be authorised
using DoLS process, instead authorisation
must be obtained from the Court of
Protection”
New CHC Framework – March 2018

21. “In these circumstances, because the CCG is
the primary funding authority, it is
responsible for applying to the Court of
Protection for this authorisation and should
seek their own legal advice for this reason.
The CCG is responsible for its own
associated legal costs, but is not responsible
for the legal costs of the individual
concerned. However, the CCG should ensure
that the individual has access to legal
advice in their own right”
New CHC Framework – March 2018

22. • Government response 14 March 2018
• accepts wholesale the Law Commission
Liberty Protection Safeguards scheme –
save
– no reform for children under 16
– Mental Health Act interface to await
separate review
• “pressing urgency” recognised but
• “legislation to implement the model
when parliamentary time allows” …
when, and how well funded?
Law Commission proposals

23. @BJhealthlaw
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coming up

24. A horror show…

25. @BJhealthlaw
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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