R (Ferreira) v HM Senior Coroner for Inner South London
Summary
Maria Ferreira suffered from Down's syndrome, severe learning disability, limited mobility and required 24 hour care which was provided principally by her sister, LF. Maria died while in intensive care in hospital. She was aged 45 at the time of death.
Maria was admitted to hospital with a working diagnosis of pericarditis, pneumonia and possible pulmonary oedema. She had a strong dislike of hospitals and found the procedure frightening. Her condition worsened so she was heavily sedated and transferred to the hospital's intensive care unit ("ICU"). Over the following days, she remained sedated and on a mechanical ventilator as a life-saving treatment intervention. While in ICU, the nursing staff put mittens on Maria's hands to prevent her from reflexively grabbing at and disconnecting the endotracheal tube. A few days later, Maria dislodged the tube. Despite prompt attempts at resuscitation, Maria went into cardiac arrest and died.
An inquest was to be held into Maria's death. The Senior Coroner held that Maria was not deprived of her liberty for the purposes of Article 5 and was therefore not in "state detention" at the time of her death within the meaning in sections 7(2)(a) and 48(1) of the Coroners and Justice Act 2009 ("CJA 2009"). There was thus no mandatory requirement to summon a jury. Maria's sister sought judicial review of this decision.
Whilst recognising that it was difficult to distinguish the meaning of "deprivation of liberty" under Article 5 ECHR from "state detention" under the CJA 2009, the Court held that the Coroner had been entitled to conclude Maria was not in "state detention" in the ICU at the time of her death, rather, she was there to receive life-saving treatment.
The starting point for the court was the language of the CJA 2009, "in state detention" and "compulsorily detained" should be given a readily understood, natural and ordinary meaning. Lord Justice Gross elaborated on the meaning of such terms by stating at paragraph 69:
"Accordingly, as a matter of language and context but without reference to the jurisprudence relating to Art. 5 ECHR, I would construe the wording "in state detention" and "compulsorily detained" as meaning a confinement imposed by a public authority, overriding the relevant person's freedom of choice; in short, detention properly so called, by the state, in whatever form."
Lord Justice Gross recognised at paragraph 73 that it was difficult to distinguish the meaning of "state detention" from "deprivation of liberty" in Article 5 in this context:
"…I have come to the view that "state detention" as defined in the CJA 2009 and deprivation of liberty under Art. 5 have essentially similar, if not necessarily identical, meanings. That conclusion does not preclude the possibility that there may be some situations constituting deprivation of liberty, as interpreted by Cheshire West, which do not necessarily amount to "state detention" under the CJA 2009. However, that is not this case and, in the present context, I am unable to accept that the answer is to be found by distinguishing "state detention" as defined in the CJA 2009 from deprivation of liberty under Art. 5"
Lord Justice Gross gave four reasons why Cheshire West did not require treating all patients in an ICU (and other hospital settings) who lacked capacity to consent to treatment for more than a very brief period as subject to a deprivation of liberty:
- It would not draw any distinction between patients with and those without any previous mental incapacity.
- It would break new ground in that the cases in Strasbourg have not addressed treatment for physical disorders unconnected with the patient's mental disorder.
- The practical consequences would be significant. The Court acknowledged the two main practical effects for coroners if a person died while in "state detention": (i) an inquest must be held, if the cause of death had been established and found to be natural; and (ii) the inquest must be held with a jury if there was reason to suspect that the death was violent or unnatural or of unknown cause.
- Any wholesale extension would overlook the fact that a person who lacks capacity to consent to a particular treatment can be treated on a best interests basis (under section 5 MCA) without being deprived of his liberty or compulsorily obtained.
Charles J, on the other hand, held that the use of the word "compulsorily" in the definition of "state detention" was significant. In his view, that word limited detentions to those imposed so as to override the individual's freedom of consent. On Charles J's reasoning, it was wholly artificial to say that at the time of her death, Maria was compulsorily detained as her freedom of choice had not been overridden in any sense and nothing had been unilaterally imposed on her.
Further, and in agreement with Lord Justice Goss, Charles J held that the principles in Cheshire West should not be applied without modification to the different situation of a patient who is in hospital for care and treatment for physical disorders. Rather, a fact sensitive approach should be applied taking into account the length of time that the relevant care and treatment has lasted, changes in it and the impact of any pre-existing lack of capacity. At first blush, this approach appears to run counter to the "acid test" in Cheshire West, namely being under continuous supervision and control and not free to leave, which was formulated on the express basis that the purpose, reason and benevolence underlying a placement was irrelevant.
Both Lord Justice Goss and Charles J considered that it was unnecessary to ask the question whether the hospital staff would have refused to allow Maria to leave if the Claimant had pressed the issue, not least because, factually speaking, it was "fanciful" to suggest that the Claimant would have sought to remove Maria in circumstances where she was receiving life-sustaining treatment. This is a divergent approach from that contained within the Law Society Practical Guide which suggests that, in considering whether there was a deprivation of liberty in the context of a hospital setting, practitioners should consider what actions hospital staff would take if, for example, family members sought to remove the patient from the hospital.
Significantly for practitioners, Charles J concluded that there was no need for an inquest having to be held in every case where an elderly person died from natural causes in a care home if their care package amounted to a deprivation of liberty to which they did not have the capacity to consent, or about which they had no real choice.
Comment
This is an important decision which will have practical ramifications for all hospitals as well as hospices and other medical settings. Whilst Lord Justice Gross and Mr Justice Charles were clear in their conclusion that Maria was not "compulsorily detained" or "in state detention" whilst in the ICU before she died, the reasons for their conclusions are not consistent. It is difficult to discern precisely why Maria was not considered to be "in state detention" at the time of her death and future cases will need to be considered on a very fact-sensitive basis.
The approach taken by Charles J is at odds with the Chief Coroner's Guidance on Deprivation of Liberty Safeguards of 5 December 2014 (and the Law Commission's view) which advises that any person subject to an authorised deprivation of liberty falls within the CJA 2009's definition of "state detention" and, therefore, the death of any such person should be the subject of a coronial investigation. Of course, the decision of the Court takes precedence over the views expressed by the Chief Coroner or the Law Commission.
