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Court hears rare treatment withdrawal application for minimally conscious patient

Mr Justice Charles criticises Legal Aid Agency for advancing any argument ‘to avoid paying legal aid’

29 November 2016

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A rare application about a patient with depleted consciousness and involving no fewer than seven parties is being heard in the Court of Protection this week, with non-professional reporters unusually allowed to live-tweet from court.

Policeman Paul Briggs was riding his motorbike to work when he was hit by a car driving down the wrong side of the road. The accident took place in July 2015 and Briggs has since been in a minimally conscious state.

The 43-year-old has been on clinically assisted nutrition and hydration (CANH) and some doctors believe he could live for another nine or ten years in this state. His family, however, say that this wouldn’t accord with his sense of independence and dignity, and his wife Lindsey has applied for treatment to be withdrawn.

‘She firmly believes that the withdrawal of treatment is in Paul’s best interests given his previously expressed wishes, his injuries and his current condition and prognosis,’ said Mrs Briggs’ solicitor, Irwin Mitchell associate Mathieu Culverhouse.

Paul Briggs has not made any advance decision in writing about what he would like to happen in such circumstances. It will be up to the Court of Protection to decide, after a hearing scheduled to last four days, whether withdrawal would be in his best interests.

On the first day of the hearing, Briggs’ wife, brothers and mother gave evidence that quality of life in the circumstances were at odds with a man who valued his independence. Colleagues also appeared, saying he was a proud and independent man who wouldn’t have wanted to be dependent on others for care. Their testimony will be weighed against doctors' scientific assessment of Briggs' state and prognosis.

The Walton Centre, where Briggs is a patient, has opposed the application, saying his condition could improve. But a doctor for the family has diagnosed him as being in a permanent vegetative state.

Barbara Rich, a barrister at 5 Stone Buildings, said it is not unheard of for doctors to take a different view. She added that it was also not unusual for families and doctors to agree that the courts, rather than them, should make the decision about whether withdrawal of treatment was in the patient’s best interests.

Rich commented that the issue should also be distinguished from right-to-die cases. ‘There’s a profound difference with Dignitas-type cases, where you have to have capacity and be able to make decision. Here, the patient lacks capacity. There is a tendency to blur the difference between the two.’

Prognosis will be the main focus of the second day of hearing on Tuesday 29 November. This will include an assessment of what could be regarded as ‘recovery’ to a quality of life that would be acceptable to the war veteran as worthwhile and meaningful.

Heledd Wyn, solicitor at Bath firm Mowbray Woodwards, said treatment withdrawal cases raised fundamental ethical issues for doctors, whose training is rooted in the ‘do no harm’ approach. ‘This is often not the families’ perspective who see their loved ones and say this is not the life they would have wanted,’ she said. ‘These decisions can be difficult enough in relation to elderly patients, where old age and frailty are a known factor, but with catastrophic injuries, it’s unexpected.’

The case also highlights a further issue of concern to many private client lawyers: planning for changes in circumstances, whether gradual, as with old age, or dramatic, as in this case. Most recommend that powers of attorney, which set out how a client’s financial affairs should be managed if they lose capacity, should be in place, along with statements of wishes, which set out private matters of interest, including clients’ wishes in relation to medical treatment.

‘Planning is far better than crisis management,’ says Wyn, ‘especially for somebody who is younger and fitter, where life prospects are much longer. If a client is getting powers of attorney drawn up, it makes sense to also suggest they have a statement of wishes, where they can let their lawyers – as well as family members and doctors – what’s important to them beyond the management of their finances.’

Last week, considering the Briggs family’s application for legal aid funding, Mr Justice Charles decided in [2016] EWCOP 48 to consider the case as one relating to plans for or arrangements about Paul Briggs’ life under section 21 of the Mental Capacity Act, which could potentially deprive him of liberty.

This entitled Briggs’ family to make use of the Deprivation of Liberty Safeguards (DoLS). It also entitled them to access non-means-tested legal aid, which would not have been available if the case had fallen to be regarded under the alternative section 5 on general welfare.

At the time, the judge also criticised the Legal Aid Agency saying it would ‘advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a p[atient] who is the subject of a DOLS authorisation’. Wyn commented the decision was ‘innovative’ and appeared to reflect a concern about lack of funding and access to justice.

Cases before the Court of Protection are usually reported anonymously unless the judge agrees otherwise. In this case, Charles J acceded to the Briggs family’s request for anonymity to be lifted and also allowed live tweeting by non-journalists who had applied for permission, a possibility opened under the 2011 court reporting guidelines. These include the Coma and Disorders of Consciousness Research Centre, whose team has been tweeting using the #COPBriggs hashtag.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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