Article 5 and Intensive care

The Court of Appeal has handed down its judgment in the appeal in the case of R (Ferreira) v HM Coroner for Inner South London and others [2017] EWCA Civ 31.

The decision under challenge was the decision of the coroner not to hold an inquest with a jury in relation to the death of the claimant’s sister Maria, who had died in an intensive treatment unit on 7 December 2013.  Maria had what the Court of Appeal had described as a “severe mental impairment”.

The claimant argued that an inquest with a jury should be convened, on the basis that Maria had been deprived of her liberty and therefore in “state detention” at the time of her death. In the last days of her life when she was in intensive care Maria was sedated, intubated and placed in mittens so that she did not reflexively remove the tubes in place.

The hospital had not applied for a standard authorisation and therefore had not granted itself an urgent authorisation under schedule A1 Mental Capacity Act 2005 (MCA).

The court had to decide whether Maria was in state detention (“compulsorily detained by a public authority”) at the time of her death.  If she was then the Coroner’s decision not to summon a jury for the inquest would have been wrong.

There are two first instance decisions, one by Gross LJ and one by Charles J.  Both dismissed the application for different reasons.  Gross LJ considered that there might be some cases where a person was deprived of their liberty for the purpose of `article 5, but not in state detention, but this was not one of these cases.  He noted that the decision in Cheshire West should not be applied mechanistically, but on the facts of each case.  To find that all patients lacking capacity receiving treatment in an ITU were deprived of their liberty would not be to apply Cheshire West but to extend it (including to patients with no preceding lack of capacity).  It would be wholly artificial on the facts of this case to say that Maria was deprived of her liberty: she was in hospital because for pressing medical and treatment reasons she was unable to be anywhere else. 

Charles J found that there was a distinction between deprivation of liberty and “compulsory detention” – compulsory detention involves over-riding the person’s will.  In some Article 5 cases the substituted decision- making in the MCA exercises choice for the person.  Following this reason someone who dies under DOLS might be deprived of their liberty but not “compulsorily detained”.  He found that Maria was not deprived of her liberty and that it was fanciful to speculate as to what would have happened if her sister attempted to discharge her.  He further found that Maria was not “compulsorily detained”.

Lady Justice Arden upheld the coroner’s decision.  In summary she held that

            “Applying Strasbourg case law, Maria was 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. The relevant Strasbourg case law applying in this case is limited to that explaining the exception in Article 5(1)(e), on which the Supreme Court relied in Cheshire West, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority.”

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Furthermore she held that if this was wrong, Maria was “free to leave” and therefore the “acid test” in Cheshire West would not have been satisfied.

Importantly Lady Justice Arden preferred the first instance reasoning of Gross LJ to that of Charles J, holding that there is a “substantial overlap” between the concepts of “state detention” and “deprivation of liberty”.  “State detention” does not require the state to have taken a decision to detain the person- this could for example have happened by mistake.   Referring back to the decision of the Strasbourg Court in Austin v UK,  [2012] 55 ehrr 359 she observed that some interference with a person’s liberty falls outside Article 5.   “Commonly occurring restrictions on movement” will not give rise to a deprivation of liberty; and can occur in respect of those with and without capacity to consent to it. 

She continued (§88):

“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.  Moreover, my conclusion in this paragraph removes what Ms Clement rightly submits would otherwise be the absurd consequence of the absence of any lawful basis in Article 5 for depriving individuals of sound mind of their liberty for the purposes of administering life-saving treatment (see paragraph 68).”

Therefore

“….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.”

She thus distinguished Maria’s case from cases such as NHS Trust v G [2015] 1 WLR 1984 where a hospital wished to provide obstetric treatment to a pregnant woman of unsound mind who objected to the treatment- because this was materially different to the treatment that would be given to someone who was of sound mind.  Cheshire West was directed to a different situation namely the living arrangements for those of unsound mind and there was no policy need to extend it.  Maria’s treatment was not arbitrary nor was it the consequence of Maria’s impairment.

At §95 she observed that:

“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”.

Furthermore there was no evidence that Maria was not free to leave: there was no suggestion that the hospital would have refused a proper request to remove Maria, or that Maria would have asked to leave.

Lady Justice Arden held that to be in “state detention” did not require an authorisation to have been granted`; this would be an “absurd” result which Parliament cannot have intended.  She noted however that whilst s64(5) MCA expressly links the interpretation of “deprivation of liberty” to Strasbourg jurisprudence, there is no equivalent provision in the Coroners and Justice Act 2009.

It is understood that permission is being sought to appeal to the Supreme Court.