Landmark judgment on deprivation of liberty in hospitals

Related Sector: Health & Social Care

R (Ferreira) v H M Senior Coroner of Inner South London & Ors (2017) EWCA Civ 3 (Court of Appeal) (Arden and McFarlane LJJ, Cranston J)

The Court of Appeal on the 26th January 2017 delivered a landmark judgment on deprivation of liberty in the context of Article 5 and the delivery of life-saving medical treatment in an ICU.


           
                                             

>>> BACKGROUND

Maria Ferreira, a young woman with a learning disability and Down’s syndrome, died while in the Intensive Care Unit (ICU) at King’s College Hospital.

On the 19th November 2013 Luisa, Maria’s sister, took Maria to hospital with breathing difficulties. On admission she was treated for pneumonia and heart problems.  She was in unfamiliar surroundings and disliked medical tests.

In the course of her checks, Maria’s condition deteriorated and she was admitted to ICU.  She was intubated and sedated.  She had a mitt placed on one of her hands to prevent removal of the tube, but despite this she was still able to remove it.  The removal of the tube by Maria led to cardiac arrest and she died shortly thereafter.  

The Senior Coroner for London Inner South East was satisfied that there had to be an inquest into her death.

>>> KEY ISSUE IN THE CASE

Whether the Coroner was required to hold an inquest into her death with a jury.

>>> THE REASON THIS IS THE KEY ISSUE

If a death occurs while somebody is in “state detention”, then the coroner is required to call a jury to the inquest.

The Coroner sought the answer to this question by considering s7 of the Coroners and Justice Act 2009. The Act which provides that an inquest into a death must be held if the senior coroner has reason to suspect that the deceased died while in custody or otherwise in state detention, and that either the death was a violent or unnatural one, or the cause of death is unknown.

The Coroner had to consider whether “state detention” equated to “deprivation of liberty” under Article 5 (1) Right to Liberty and Security of the European Convention of Human Rights.  If it did, then the leading judgment on deprivation of liberty handed down by the Supreme Court in March 2014 in Cheshire West would be relevant.   

The Coroner concluded that Maria was not under state detention at time of death, and therefore did not call a jury.

Maria’s sister contested this decision. Her argument that as a result of Maria’s hospital treatment, Maria had at the date of her death been deprived of her liberty and that accordingly she was in “state detention” when she died. This case was heard by the Court of Appeal in December 2016.

>>> OUTCOME

The Court of Appeal handed down judgment on the 26th January 2017. They concluded that Maria was not deprived of her liberty.
Download the full judgment.

>>> REASONING

(1)    Context - Cheshire West was distinguished:

“since it is directed to a different situation, namely that of living arrangements for persons of unsound mind.” (para 91)

and therefore did not apply to the context of urgent or intensive care, meaning that the Court of Appeal did not have to follow it, instead leaning towards the judgment of Austin (Austin & Others v. The United Kingdom, [2012] ECHR 459)

(2)    Freedom to leave - If the Court is wrong on point (1) above, and Cheshire West did apply, then the judgment indicates people in ICU would only meet one of the two key aspects of the “acid test”; namely that although they would be under continuous supervision and control, they would be free to leave as it was their underlying illness which was the reason of why they were taken into intensive care:

“the true cause of their not being free to leave is their underlying illness, which was the  reason why they were taken into intensive care. The person may have been rendered unresponsive by reason of treatment they have received, such as sedation, but, while that treatment is an immediate cause, it is not the real cause. The real cause is their illness, a matter for which (in the absent of special circumstances) the state is not responsible.” (para 99)

(3)    Definition of state detention - That the Coroners and Justices Act 2009 does not expressly require consideration of Article 5, and ICU does not fall within the definition of “state detention”

(4)    Policy – that deprivation of liberty authorisations in the ICU context would

“involve a significant dilution and distraction of clinical resource, time and attention.  That must inevitably risk jeopardising the outcome for all ICU patients, for no apparent policy reason”; (para 111) and
“the fact that the conclusion which I have reached will avoid substantial expenditure of human and financial resources, for which no semblance of a policy reason has been given to us, in my judgment is also supportive of the conclusion I have reached.” (para 112)

>>> IMPLICATIONS

The narrow interpretation of this judgment, in general, means there will not be a deprivation of liberty for anyone receiving life-saving treatment in ICU. The judgment refers to an example of exceptions in the case of an NHS Trust v FG.

The wider interpretation, is that the judgment is applied both more widely in hospital settings and in other care settings, such as palliative care in hospices:

“in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against the deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (para 93)

>>> COMMENT

Even if many agree with the ultimate conclusion, that on the narrow interpretation, a person in ICU should not generally be described as being in state detention; the reasoning in the judgment is likely to be a controversial.   

So, for now we will see a reduction in DoL applications, in the very least for cases in ICU. While this news is welcomed, the reduction may only amount to a small percentage of the whole, leaving the work BIAs do very much in demand.

Please note that the solicitors for the appellant, Bindmans, have already sought permission of the Court of Appeal to take the case to the Supreme Court. Should the court refuse permission, the firm will apply directly to the Supreme Court, and it is the Supreme Court which will cast the final decision.

Every BIA must understand the implication of this judgment and how it will impact their work. The judgment will be covered in detail on our upcoming BIA Refresher courses. For more information please visit our webpage.

Sue Inker
Bond Solon Subject Matter Expert and Adult Social Care Trainer