R (Ferreira) v HM Senior Coroner for Inner South London and others
Maria Ferreira died in an intensive care unit after she dislodged a tube with her mittened hand. An inquest was to be held but whether a jury was required depended upon whether she died in "state detention" under ss 7 and 48 of the Coroners and Justice Act 2009. A key issue, therefore, was whether "state detention" equated to "deprivation of liberty" under Article 5(1) ECHR and the relevance of the Supreme Court's decision in Cheshire West.
The Court of Appeal concluded Ms Ferreira was not in state detention for three alternative reasons: (1) Cheshire West did not apply; (2) if it did apply, she was free to leave; and (3) unlike MCA s 64(5), the CJA 2009 does not expressly require consideration of Article 5 and ICU is not state detention.
(1) Cheshire West distinguished
Arden LJ (giving the sole reasoned judgment of the court) accepted that there was a substantial overlap between "state detention" and "deprivation of liberty", although it need not bear the exact same meaning. The primary answer to the issue was to be found in Article 5 (para 78) and, accordingly, she was:
10… not deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital." (emphasis added)
It seems that, where a person's deprivation of liberty could not be justified under the exceptions in Article 5, regard could be had to the purpose of the liberty interference (para 81). Moreover, relying upon Nielsen v Denmark (involving a 12 year old in a psychiatric hospital) and HM v Switzerland (elderly person in residential care):
85… This case shows, where the detention was not capable of coming within any of the exceptions to Article 5(1), justification is not treated separately from the question whether the person is deprived of her liberty. Moreover, the reason for his detention was relevant, and thus the fact that a person is deprived of his liberty in his own interests may prevent the deprivation of liberty from being a relevant deprivation of liberty for the purposes of Article 5.
The court went on to hold that there is in general no deprivation of liberty where the person is receiving life-saving medical treatment:
88… The Strasbourg Court in Austin has specifically excepted from Article 5(1) the category of interference described as "commonly occurring restrictions on movement". In my judgment, any deprivation of liberty resulting from the administration of life-saving treatment to a person falls within this category. It is as I see it "commonly occurring" because it is a well-known consequence of a person's condition, when such treatment is required, that decisions may have to be made which interfere with or even remove the liberty she would have been able to exercise for herself before the condition emerged. Plainly the "commonly occurring restrictions on movement", which include ordinary experiences such as "travel by public transport or on the motorway, or attendance at a football match", can apply to a person of unsound mind as well as to a person of sound mind.
- On this basis, 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.
The Supreme Court's decision in 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 policy did not require the acid test to apply to urgent medical care:
93… There is 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. The treatment is neither arbitrary nor the consequence of her impairment…
- In addition, in my judgment, Article 5(1)(e) is directed to the treatment of persons of unsound mind because of their mental impairment. The purpose of Article 5(1)(e) is to protect persons of unsound mind. This does not apply where a person of unsound mind is receiving materially the same medical treatment as a person of sound mind. Article 5(1)(e) is thus not concerned with the treatment of the physical illness of a person of unsound mind. That is a matter for Article 8. Where life-saving treatment is given to a person of sound mind, the correct analysis in my judgment is that the person must have given consent or the treating doctors must be able to show that their actions were justified by necessity or under section 5 of the MCA. If this cannot be shown, then there has to be some method of substituted decision-making, such as obtaining an order from the Court of Protection." (emphasis added)
If distinguishing Cheshire West turned out to be wrong, the court held that Ms Ferreira was under continuous supervision and control but was not deprived because she was free to leave. Contrary to the Law Society guidance, the court held that the focus is on the patient's wish to leave, not that of her relatives to remove her (para 96). The issue was unlikely to arise in practice where a patient with an acute condition was in ICU. If it did, clinicians would likely try to persuade the patient from leaving, but not prevent it. The evidence suggested that clinicians would go so far as to seek urgent advice from the legal team. The court goes on to say:
- Moreover, as I read it, the two-part acid test formulated by Lady Hale in Cheshire West in my judgment was designed to apply only where the second element – lack of freedom to leave – was the consequence of state action, particularly state action consisting of the continuous supervision and control constituting the first element of the test.
- In the case of a patient in 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. It is quite different in the case of living arrangements for a person of unsound mind. If she is prevented from leaving her placement it is because of steps taken to prevent her because of her mental disorder. Cheshire West is a long way from this case on its facts and that, in my judgment, indicates that it is distinguishable from the situation of a patient in intensive care.
105… there was no evidence to suggest that the hospital would have refused a proper request to remove Maria or that Maria would have asked to leave…. her inability to leave was the consequence of her very serious physical condition.
(3) Not "state detention" under CJA 2009
The final, alternative, basis for dismissing the appeal was that the jurisprudence of the European Court of Human Rights did not apply when interpreting the words "state detention" in the JCA 2009:
108… section 48(2) of the CJA 2009, properly construed, 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.
Paragraph 66 of the Chief Coroner's Guidance No 16, Deprivation of Life Safeguards, revised 14 January 2016, stated that "The person is not 'in state detention' for these purposes until the DoL is authorised." In other words, the death need not be reported to the coroner unless an authorisation was in place. However, the Court of Appeal held that this was wrong:
104… It would be highly anomalous if, in order for there to be "state detention", there had to be authorisation for removing a person's liberty. Parliament cannot have intended such an absurd result.
Whilst many may agree with the conclusion that a person in intensive care should not generally be described as being in State detention, the court's reasoning to that conclusion is likely to prove controversial, and permission to appeal is being sought. It is a shame that the court declined to consider the submission that Article 5 is about coercion (para 71). For interpreting a deprivation of liberty as coerced, or compulsory, confinement may ultimately provide a more principled answer to the restriction-v-deprivation dilemma. After all, according to Winterwerp, whether the unsoundness of mind justifies "compulsory confinement" is what Article 5(1)(e) is about.
The fact that the court found the primary answer in Article 5 means that it is likely to have significant consequences, not least of course in ICUs to which, in 2014/15, there were 163,000 admissions in England and Wales. What we seem to be witnessing is "deprivation of liberty" being interpreted differently in different contexts, with policy considerations very clearly in play. In Cheshire West, the policy was to ensure extremely vulnerable people had independent periodic checks on their best interests. In intensive care, this court was content to rely more upon the good faith of the clinicians. Without expressly referring to it, the approach of the court appears to reflect the type 1 / type 2 distinction which Lady Hale found "helpful" in Cheshire West (paras 43-44). Type 1 being situations that could be justified under Article 5(1) and type 2 being those that cannot.
The judgment is likely to be applied in other analogous care settings, such as palliative care, and disorders of consciousness because, typically, the person is receiving the same physical treatment as that given to a person of "sound mind". For example, it may well be difficult now to contend that Paul Briggs was deprived of his liberty. Distinguishing physical from psychiatric treatment is not straightforward. And trying to draw these fine distinctions when determining the scope of Article 5 will be challenging. Indeed, much of the judgment refers to "unsound mind" or "mental impairment". But it is not clear what that means in this context. Does it mean "mental disorder" or "mental incapacity"?
That para 66 of the Chief Coroner's Guidance was held to be wrong is not a surprise but does have significant ramifications. It means that it does not matter whether the deprivation of liberty is authorised or not, a death therein will need to be reported to the coroner. Of course those caring at end of life, and best interests assessors, may use this judgment to contend that the person is not deprived of liberty. But, that apart, this ruling is likely to lead to an ever-growing demand on coroners to consider typically naturally deaths. In that regard, the amendment to the Coroners and Justice Act 2009 contained in the Policing and Crime Act 2017 (to which Royal Assent was given on 31 January) may only provide limited assistance. That amendment provides that "a person is not in state detention at any time when he or she is deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005." This means that natural deaths occurring where a person is deprived under DoLS, Court of Protection authorisations, or whilst applications to the court are being made will not need to be reported. But non-authorised deprivations of liberty will still have to be.
Ultimately, perhaps the court's conclusion is best explained by the underlying policy concerns:
111 … to require authorisation of the deprivation of liberty in what would be a normal ICU case 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.
112… 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 that I have reached.
 Note, both Tor and Alex being involved in this case and permission being sought by the Appellant to appeal to the Supreme Court, this note has been prepared by Neil Allen.