A person who died in an intensive care unit, who had lacked capacity to consent to their treatment there, was not in “state detention” at the time of their death

Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, Arden and McFarlane LJJ and Cranston J, 26 January 2017

Maria Ferreira (Maria), who had Down’s syndrome and learning difficulties, died in an intensive care unit (ICU) at King’s College Hospital. Her sister, Louisa Ferreira (LF), sought to judicially review the coroner’s decision not to hold the inquest with a jury. The Divisional Court, consisting of Gross LJ and Charles J, dismissed the claim for judicial review. LF appealed.

LF argued that “state detention” includes, in the case of persons who lack capacity to consent to their treatment, deprivation of liberty for the purposes of Article 5(1), and therefore the meaning given to deprivation of liberty in Surrey County Council v P, Cheshire West and Chester Council v P [2014] 19, [2014] AC 896 (“Cheshire West”) applies.

A coroner is obliged to hold the inquest with a jury if a person dies in ‘state detention’ for the purposes of Coroners and Justice Act 2009 (CJA 2009). S 48(2) CJA 2009 defines “state detention” as where a person is compulsorily detained by a public authority within the meaning of s 6 of the Human Rights Act 1998.

Section 5 MCA 2005 enables a hospital to give treatment to a person who lacks capacity to consent to it where the treatment is in the patient’s best interests. However a hospital may not give treatment which deprives a patient who is unable to give consent of their liberty without an order of the court or the appropriate authorisation under schedule A1 MCA 2005.

The Court of Appeal held that the coroner’s decision was not in error of law and gave the following reasons:

1. Life- saving treatment does not in general give rise to a deprivation of liberty within Article 5(1) ECHR. “….. any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1) (as it was said in Austin) ‘so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage and [is] kept to the minimum required for that purpose’. In my judgment what these qualifications mean is in essence that the acute condition of the patient must not have been the result of action which the state wrongly chose to inflict on him and that the administration of the treatment cannot in general include treatment that could not properly be given to a person of sound mind in her condition according to the medical evidence.” (paragraph 89)This conclusion removed what would otherwise be the absurd consequence of the absence of any lawful basis in Article 5 for depriving individuals who did not lack capacity of their liberty for the purpose of administering life-saving treatment.
2. Cheshire West was distinguishable because it is directed to a different situation, namely that of living arrangements for a person who lacks mental capacity.
3. An example of where authorisation for a deprivation of liberty would be necessary was NHS Trust v I [2015] 1 WLR 1984, where a hospital considered that it might have to give obstetric care to a pregnant woman who lacked capacity and who objected to such treatment. A deprivation of liberty was authorised because she might be prevented from leaving the delivery suite and compelled to submit to invasive treatment. If these steps had to be taken, the treatment would be materially different from that given to a person of sound mind. (paragraph 90)
4. The policy reasons for finding a violation under Article 5 in Cheshire West did not apply in this case. There was no general need in the case of physical illness for a person who lacked mental capacity 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. The treatment was neither arbitrary nor the consequence of the impairment. (paragraph 93)
5. Article 5(1)(e) is directed to the treatment of persons of “unsound mind” because of their mental impairment. Article 5(1)(e) is thus not concerned with the treatment of the physical illness of a person of “unsound mind”. That is matter for Article 8. (paragraph 95)
6. In any event, even if the acid test in Cheshire West were required to be applied, the question whether Maria would have been free to leave would be answered in the affirmative. In the case of a patient in intensive care, the true cause of their not being free to leave was their underlying illness. (paragraphs 96 – 101)
7. If the conclusions on Article 5 were wrong, and the acid test applied, the coroner’s decision was nevertheless not in error. In Cheshire West section 64(5) MCA 2005 required the Supreme Court to apply the jurisprudence of the Strasbourg Court. S 48(2) CJA 2009 did not require the court to do so. S 48(2) does not include ICU treatment as “state detention” because there is no clear and constant jurisprudence of the Strasbourg Court that such treatment involves a violation of Article 5. The courts are not bound to follow Strasbourg jurisprudence in that event. In the absence of such clear and constant jurisprudence the court should not give such a meaning to “state detention”. No one would ordinarily regard a patient who is in intensive care as deprived of their liberty. Further, the evidence filed on behalf of the Intensive Care Society and the Faculty for Intensive Care Medicine powerfully supported the conclusion that treatment in an ICU is not in general appropriately treated as a deprivation of liberty; to require authorisation of the deprivation of liberty in what would be a normal ICU case would involve significant dilution and distraction of clinical resource, time and attention and that must inevitably risk jeopardising the outcome for all ICU patients, for no apparent policy reason. (paragraphs 106 – 112)

Transcript of the judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2017/31.html