Treatment in an intensive care unit does not constitute deprivation of liberty

A landmark judgment was handed down by the Court of Appeal in the case of Ferreira v HM Senior Coroner for Inner South London on 26 January 2017 looking at the interpretation of "state detention" and therefore the meaning of "deprivation of liberty" (DoL) in the acute clinical setting.                                         

Background

Maria Ferreira had Downs syndrome, learning difficulties and was of "unsound mind" for the purposes of ECHR Article 5. She had been admitted to the intensive care unit of King's College Hospital with pneumonia and heart problems and died following a cardiac arrest in December 2013. No authorisation for depriving her of her liberty had been sought by King's College and she had not been admitted under the Mental Health Act 1983.

A coroner is obliged to hold an inquest with a jury if a person dies in "state detention" for the purposes of the Coroners and Justice Act 2009. The coroner decided in January 2015 that an inquest would be held but without a jury on the basis that the patient had not been in "state detention" under s7 Coroners and Justice Act 2009. The Divisional Court held that this decision was not open to judicial review and that decision was appealed.

The decision of the Court of Appeal

On appeal the patient's sister argued that an inquest with a jury should be held as the patient's hospital treatment meant that she had been deprived of her liberty for the purposes of Article 5 and had therefore been in "state detention." She argued that the coroner should have applied the "acid" test set out in Cheshire West.

The Court of Appeal rejected the appeal and held that the coroner's decision was correct in law and gave the following reasons:-

• Any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1). Maria was not deprived of her liberty because she was being treated for a physical illness and that treatment would have been the same for a person who did not have her mental impairment.
• Maria Ferreira would not have met the "acid" test set out in Cheshire West as she was not prevented from leaving the hospital. The root cause of any loss of liberty was not as a result of any restriction imposed by the hospital but as a result of her physical condition.
• There is no policy reason why Parliament should have provided that the death of a person in intensive care of itself should result in an inquest with a jury as it would be costly in terms of human and financial resources.

Are there any exceptions?

The Court of Appeal  stated that an example of a case where a DoLs authorisation would be necessary is one such as NHS Trust I v G [2015] 1 WLR 1984 where a hospital considered that it might have to give obstetric care to a pregnant woman of unsound mind who objected to such treatment. In that case the court made an order authorising a deprivation of liberty and invasive medical treatment on a precautionary basis. The judge said, "the pregnant woman in question was to be prevented from leaving the delivery suite and might be compelled to submit to invasive treatment, such as a Caesarean section.  If these steps had to be taken, the treatment would be materially different from that given to a person of sound mind."

What does this decision mean?

An application for leave to appeal this decision has been made. However, in the meantime the Court of Appeal has held that in general there will be no deprivation of liberty when giving life-saving treatment where that treatment is for physical illness and would be the same for someone with or without capacity. As such, the majority of patients in ICU will not require a DoLs authorisation. In such circumstances, if a patient died in intensive care a coroner was under no obligation to hold an inquest with a jury. This would appear to be a common sense, practical decision and in these resources capped times this is a welcome approach.

If you would like to speak one of our team about this please contact Stuart Marchant or Claire Bentley.