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BMJ 2016; 355 doi: https://doi.org/10.1136/bmj.i6829 (Published 22 December 2016) Cite this as: BMJ 2016;355:i6829

The Paul Briggs Ruling: it seems to me that Mr Justice Charles posed an unnecessary question

If I am allowed to, I would like to add to my earlier comment, having now read the entire Briggs ruling (ref 1).

Mr Justice Charles is clear about a number of things: ‘it is the application of the MCA, rather than the common law and inherent jurisdiction set out in the earlier cases that matters.’ {OVERVIEW: 16, page 4}; section 11 of the MCA is shown {REASONING: 18, page 14}; and on page 31 Mr Justice Charles poses the question ‘Does section 4(5) of the MCA prevent me making a welfare order and declarations based on a care and treatment plan that Mr Briggs’ CANH is not to be continued.’ - a question which he then analyses at length by reference to earlier court rulings.

I must ask – why ? If I read the MCA and the LPA as a capacitous layman, either when addressing my future by appointing an attorney for my healthcare under the LPA, or when I have been appointed as an attorney, and I read sections 11(7) and 11(8) I see:

11(7) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P’s personal welfare, the authority—
(a) does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,
(b) is subject to sections 24 to 26 (advance decisions to refuse treatment), and
(c) extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.

11(8) But subsection (7)(c)—
(a) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and
(b) is subject to any conditions or restrictions in the instrument.

The MCA clearly states, in those sections, that an attorney whose authority extends over life-sustaining treatment is authorised to ‘refuse consent to the continuation of a life-sustaining treatment’ such as CANH. As an aside, I would point out that the MCA is incorrect about what the attorney actually does: it isn’t ‘consenting or refusing’ - it is expressing a best-interests decision that one of the possible options (application or withholding of a treatment) is in the patient’s best interests.

On page 22, Mr Justice Charles has a heading ‘The making of a best interests decision by a decision maker (including the court) under the MCA in respect of life-sustaining treatment’, and it is clear that he is considering the best-interests requirement (section 4 of the Act) which applies to ALL decision-makers who are individuals:

4(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

Therefore the answer to ‘Does section 4(5) of the MCA prevent me making a welfare order and declarations based on a care and treatment plan that Mr Briggs’ CANH is not to be continued.’ is very clearly ‘no – it doesn’t’.

Mr Justice Charles then moves on to a discussion of a more useful question: how, in view of 4(5), is the decision to withdraw CANH justifiably arrived at: in considering that, he starts by ‘working from’ the autonomy of capacitous patients, develops a very similar line of reasoning to an earlier analysis of my own (ref 2) [although I think his introduction of the doctrine of ‘double effect’ is not necessary], and seems to have arrived at the same justification as I did.

I have only minor issues with the ruling – in places I feel it isn’t sufficiently clear about the separation between patient autonomy and best-interests decision-making – so I will only comment on one further point. In 48, on page 23, we find:

‘A court can if necessary make binding findings of fact and it carries out the weighing exercise required by the MCA with the benefit of hearing evidence that is tested and argument. As a consequence, it is likely to be in a better position to determine the existence of, and the weight to be given to, the matters set out in s. 4(6) of the MCA that are based on the past when P had capacity than, for example, treating doctors are. So, if P’s family are asserting that they favour a different conclusion to that reached by the medical team, it is likely that in many cases to be reasonable if not inevitable for doctors to give great and probably determinative weight to medical and ethical issues in their exercise of the MCA best interests test pending the resolution of the existence of the matters in s. 4(6) and the weight to be given to them by a court.’

Mr Justice Charles is apparently suggesting that doctors and relatives/friends will INEVITABLY tend to hold different opinions: provided everyone is ‘well-informed’ it is quite acceptable to describe those opinions as best-interests decisions (what people cannot do, is to enact such a best-interests decision, because the court is in the process of ruling on that issue). This cannot be ‘consistent with the MCA’s ethos’ - as I have pointed out (ref 3):

‘So, if in the same situation doctors and relatives tend to make different best-interests decisions (I mean the doctors tend towards one decision, and the relatives tend towards a different decision) then 'something isn't right'. 

Inevitably there will be situations when there is disagreement within relatives about the 'right' decision, or within a group of doctors: there is no way of deciding on 'who is right'. BUT if doctors and relatives consistently 'reach different conclusions about best-interests', then something is wrong, because such differences are not supported by the structure of the MCA.’

Ref1 https://www.judiciary.gov.uk/wp-content/uploads/2016/12/l-briggs-v-p-bri...

Ref 2 http://www.bmj.com/content/355/bmj.i6829/rr

Ref 3 http://www.dignityincare.org.uk/Discuss_and_debate/Discussion_forum/?obj...

Competing interests: No competing interests

03 January 2017
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN
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