Legal Aid in the Court Of ProtectionPosted: 7th August 2017

In November 2016 the Court of Protection heard the case of Paul Briggs. Mr Briggs was in a minimally conscious state after a motorbike accident. His wife argued that it was not in his best interests to continue to receive the clinically assisted nutrition and hydration that was keeping him alive. She, and other family members, told the Court that Mr Briggs would not have wanted to continue to live in those circumstances. The judge agreed and the Court withdrew consent to the life-sustaining treatment on Mr Briggs’ behalf.

Understandably, this was the headline judgment but the case also included other decisions that had a major impact on the provision of legal aid in Court of Protection. Mr Briggs was considered to be deprived of his liberty in hospital and this was authorised by the local authority. In those circumstances, a “Relevant Person’s Representative” (RPR) is appointed to safeguard the person’s interests, including making an application to the Court of Protection to challenge the deprivation of liberty where appropriate. The RPR is often a family member or advocate.

When a decision is made by a local authority to deprive a person of their liberty in a hospital or care home, the decision can be challenged in the Court of Protection. The person who is deprived of their liberty and their RPR can receive non-means tested legal aid.

Mrs Briggs was the RPR in this case. She brought the case to Court as a challenge to Mr Briggs’ deprivation of liberty but accepted from the outset that the central issue was the provision of life sustaining treatment. If she brought the application simply as a challenge to the provision of the treatment, she would have not have met the conditions of the means test and would not have received legal aid. The judge at that time accepted the argument that the treatment formed part of the best interests test which had to be considered before the deprivation of liberty could be authorised. He allowed the case to be considered as a challenge to the deprivation of liberty, with the effect that the provision of non-means tested legal aid in Court of Protection health and welfare cases was increased significantly.

As a result of the decision to withdraw treatment, Mr Briggs sadly passed away in January 2017. However, the case was still appealed. The appeal was brought by the Legal Aid Agency and Secretaries of State for Health and Justice. The appeal was not of the decision to withdraw treatment but of the decision of the judge that this decision could be made within the remit of a challenge to Mr Briggs’ deprivation of liberty.

The Court of Appeal upheld the appeal and said that a decision about the provision of life sustaining treatment should not be brought as a challenge to a deprivation of liberty but as a standalone issue. The Court of Appeal stated that this was not a decision about legal aid but about the correct section of the Mental Capacity Act to use when bringing challenges about the best interests of those who are deprived of their liberty. However, in practice the effect of the judgement was to increase the number of people who are subject to means testing. In turn, this reduces the availability of legal aid in Court of Protection health and welfare cases.

If you do not qualify for legal aid we are able to provide advice and representation in Court of Protection matters on a private basis.