R (Ferreira) v HM Senior Coroner for Inner South London and others 
Keywords: Deprivation of Liberty, Hospital
The key judgement by the Court of Appeal which considered the application of the Cheshire West ‘acid test’ for Deprivation of Liberty in the setting of an acute hospital intensive care unit.
Maria Ferreira had Down’s syndrome, severe learning disability, limited mobility and lacked capacity to consent to treatment. Maria died in December 2013, aged 45, while in intensive care in an acute hospital. She had been admitted to hospital with pneumonia and heart problems. She had a strong dislike of hospitals and was frightened. Her physical condition deteriorated, so she was heavily sedated and transferred to intensive care, where she remained under sedation and on a ventilator. Despite the use of mittens, Maria dislodged a breathing tube, had a cardiac arrest and died. The hospital had not sought a DoLS authorisation, nor had Maria been admitted under the Mental Health Act 1983.
The Coroners and Justice Act 2009 requires a coroner to hold an inquest with a jury if a person dies in “state detention”. This requirement has (with ensuing emotional difficulties for families and administrative demands on coroners and local authorities) encompassed the hugely increased numbers of those detained under DoLS authorisations since the broadening of the definition of “Deprivation of Liberty” in Cheshire West.
In this case, the coroner decided that Maria had not been in “state detention”. The Court of Appeal upheld that decision, offering 3 alternative reasons:
- The ‘acid test’ set out in Cheshire West did not apply because MF’s care fell outside the exception in Article 5(1)(e) (which relates to the lawful detention of “persons of unsound mind”).
“… 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 … 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.” (para.10)
In reaching this conclusion, the court took the view that the policy purpose both of the protections under Article 5 ECHR and of the ruling in Cheshire West was to protect those who lack capacity to consent to their treatment against arbitrary detention on the grounds of their mental disorder.
“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.” (para.93)
Consequently, this ruling can be taken to apply broadly in holding that life-saving medical treatment given to someone who lacks capacity to consent does not generally constitute a deprivation of liberty provided the treatment provided is not materially different to that which would be given to someone who did have the capacity to consent.
- Even if (1) were wrong, the circumstances of MF’s care did not mean that she was “not free to leave”.
The court considered that the underlying cause of MF’s inability to leave was her physical condition and not any action by the hospital. MF’s sister contended that she had perceived that she would be unable to withdraw MF from the hospital, however, this perception was not sufficient for the test to be satisfied.
Interestingly, and with potentially problematic interpretations in other circumstances, the judgement focussed on what would have happened in the case of a lawful decision to leave – which, in the case of a patient lacking capacity, could only be made by a court or a welfare attorney or deputy, and not by a relative who did not hold deputyship – so a purely hypothetical scenario, in this case.
The issue of whether the hospital would have actually prevented a relative without the legal power to make the decision from moving a patient who lacked capacity was not resolved.
Whatever future difficulties might result from that unresolved point, in this case, the court took the view that there was no evidence that the hospital would have prevented MF from leaving in the face of a lawful decision for her to do so.
- The concept of “state detention” is not necessarily identical to “Deprivation of Liberty” under Article 5. This case required considering whether MF had been in “state detention” as set out by the Coroners and Justice Act 2009. The interpretation of “Deprivation of Liberty” under the Mental Capacity Act is the same as that in Article 5 ECHR (s.64(5) MCA), but that definition was not relevant to determining the meaning of “state detention”. The court, therefore, held that there was no evidence that parliament had intended to include Intensive Care within the definition of “state detention” and significant policy and resource reasons to believe that they had not.
The straightforward conclusion is that this case clearly holds that medical treatment in an Intensive Care Unit does not generally constitute a Deprivation of Liberty. This makes a lot of practical and common sense.
However, the reasoning behind the decision is potentially more problematic. This is because Deprivation of Liberty seems to be being defined differently in different care settings. This results in continuing uncertainty along the borders, for instance in palliative care and for minimally conscious patients. In particular:
- The reasoning that those who lack capacity to consent to treatment for physical illness do not need legal safeguards over and above those available to those who do have capacity to consent provided the treatment given is not materially different, is potentially problematic.
- Deciding whether or not circumstances amount to a Deprivation of Liberty on the basis of a distinction between treatment for physical and mental conditions is problematic. The line between the two is not always entirely clear in medical situations and each affects the other.
The case is being appealed to the Supreme Court.
Full transcript at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/31.html
Guidance from the Intensive Care Society following this case: http://www.familylaw.co.uk/system/froala_assets/documents/1492/FICM_ICS_Guidance_on_MCA_and_DoLS.pdf