Update to para 6.1, page 174: General

R (ota Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 addresses the tangled issue of what actually constitutes a deprivation of liberty. It is a further retreat by the judiciary from the far-reaching implications of Cheshire West.

Update to para 6.789 - para 6.86, page 200: Admission to an intensive care unit: R(LF) v HM Senior Coroner for Inner South London (“Ferreira”)

The Court of Appeal dismissed the appeal in R (ota Ferreira) v HM Senior Coroner for Inner South London [1] (“Ferreira”), but with slightly different reasoning from the Divisional Court.  Arden LJ stated that the Deceased:

‘…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.[2] (our emphasis)

The court was clear that not every deprivation of liberty was in fact a ‘relevant deprivation of liberty for the purposes of Article 5’.[3]  Austin v UK[4] established that there may be cases where an interference with a person’s liberty is justified and therefore outside Article 5, even though it does not fall within one of the exceptions at Article 5(1)(a)-(f).  In deciding whether a particular interference is such a case, the reason for the interference was important.[5]

The Court of Appeal determined that ‘any deprivation of liberty resulting from the administration of life-saving treatment to a person’ was one of the ‘commonly occurring restrictions on movement’ which fell outside Article 5(1) – and it was therefore not a deprivation of liberty – provided 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.’[6]

Accordingly, the Cheshire West approach did not apply.

In the alternative, if Cheshire West was applicable, Arden LJ held that the second part of the ‘acid test’ was not satisfied as Ms Ferreira was free to leave.[7] Her sister’s perception that she was not allowed to leave was not enough.[8]

Arden LJ also held that a death in intensive care was not, absent special circumstances, a ‘state detention’ for the purposes of the Coroners and Justice Act 2009.[9] The courts were not required to apply the Strasbourg jurisprudence to this type of case: there was no Convention right to an inquest with a jury and, although the Strasbourg case law had not considered this type of scenario, nothing in that case law suggested this should be a deprivation of liberty. Policy reasons, while they could not be decisive, supported this interpretation of the statute. The court described the view that Ms Ferreira was deprived of her liberty as ‘unrealistic’.[10]

Implications

Importantly the Court of Appeal in Ferreira distinguished intensive care from other types of treatment for a physical condition where the treatment provided is ‘materially different’ from that which would be given to a person of sound mind.[11]  Specifically, the Court considered NHS Trust I v G[12] a case where the prevention of a pregnant woman from leaving the delivery suite and the possibility of compulsory invasive treatment, including a Caesarean section, was so materially different from that which a pregnant woman of sound mind would receive that it fell within Article 5(1). Authorisation of the deprivation in that situation would still be required.

The Ferreira judgment was sensible and pragmatic, bringing some welcome certainty – and a relief to practitioners in intensive care that the tentacles of Cheshire West do not yet reach into the ICU.[13] It does, however, indicate the way in which policy considerations are driving judicial thinking around deprivation of liberty.

There is scope for further debate, especially where patients are in a disorder of consciousness. Two competing lines of argument arise:

  • The first Briggs judgment[14] will encourage family members of those in such a condition who seek withdrawal of nutrition and hydration to seek a standard authorisation to enable non-means tested legal aid to be obtained. A standard authorisation can only be given where there is a deprivation of liberty, but the parties in Briggs specifically reserved their positions on the question whether Mr Briggs was in fact deprived of his liberty, and the judgment does not address this point.  It may yet be addressed on an appeal.
  • The Health Secretary’s case in Ferreira was that the following were all outside the scope of Article 5(1): (i) a person who is unconscious with a disorder of consciousness, (ii) a person with a brain injury (with no accompanying mental disorder); (iii) a temporarily unconscious person.[15] Whilst the submission is reasonable, the judgment in Ferreira does not address this point specifically, and thus there is as yet no determination of whether these patients are of ‘unsound mind’ for the purposes of Article 5(1)(e).

Both Ferreira and Briggs may be the subject of further appeal.

 

[1] [2017] EWCA Civ 31 previously referred to as “LF“
[2] para 10
[3] para 85, para 88 (our emphasis)
[4] (2012) 55 EHRR 359, Grand Chamber of the Strasbourg Court: the police ‘kettling’ case
[5] para 79-87
[6] para 88-9
[7] para 11
[8] para 96-101
[9] para 12.
[10] para 12
[11] para 90
[12] [2015] 1 WLR 1984: the FG case discussed at para 6.72-6.78 and para 10.19-10.20
[13] For further discussion of the judgment: see Bridget Dolan QC’s article: ‘Inquest juries, DOLS and the law of unintended consequences.’ http://bit.ly/2kQgFsH : ‘Get a grip! Art 5 ECHR was never meant to cover doctors saving people’s lives...and anyway, there is no Convention right to a jury inquest, and it is helping no-one and hindering NHS care to be quite so pedantically silly.’
[14] Discussed in the updates to chapter 5 and 13
[15] para 68