R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2

"On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit of King's College Hospital, London. The Senior Coroner for London Inner South, Mr Andrew Harris, is satisfied that there has to be an inquest into her death. By a written decision dated 23 January 2015, which is the subject of these judicial review proceedings, the coroner also decided that he did not need not to hold the inquest with a jury. ... A coroner is obliged to hold an inquest with a jury if a person dies in 'state detention' for the purposes of the Coroners and Justice Act 2009. The appellant is Maria's sister, Luisa Ferreira, whom I will call Luisa. She contends that, as a result of her hospital treatment, Maria had at the date of her death been deprived of her liberty for the purposes of Article 5 of the European Convention on Human Rights and that accordingly Maria was in 'state detention' when she died. ... In my judgment, the coroner's decision was correct in law. 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 Chester Council v P [2014] UKSC 19, [2014] MHLO 16, and accordingly this Court is not bound by that decision to apply the meaning of deprivation of liberty for which that decision is authority. If I am wrong on this point, I conclude that the second part of the 'acid test', namely that Maria was not free to leave, would not have been satisfied. Even if I am wrong on all these points, I would hold that as this is not a case in which Parliament requires the courts to apply the jurisprudence of the European Court of Human Rights when interpreting the words 'state detention' in the CJA 2009, and that a death in intensive care is not, in the absence of some special circumstance, a death in 'state detention' for the purposes of the CJA 2009. There is no Convention right to have an inquest held with a jury. There is no jurisprudence of the Strasbourg Court which concludes that medical treatment can constitute the deprivation of a person's liberty for Article 5 purposes. The view that it is a deprivation of liberty would appear to be unrealistic. We have moreover not been given any adequate policy reason why Parliament would have provided that the death of a person in intensive care of itself should result in an inquest with a jury. That result would be costly in terms of human and financial resources."

Related judgments

R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Court of Appeal

Regina (Ferreira) v Inner South London Senior Coroner (Intensive Care Society and the Faculty of Intensive Care Medicine and others intervening)

[2017] EWCA Civ 31

Arden , McFarlane LJJ, Cranston J

Coroner — Inquest — Jury — Mentally incapacitated adult dying in hospital’s intensive care unit — Whether coroner obliged to summon jury for inquest into death — Whether treatment of patient in intensive care involving state detention — Whether deprivation of liberty in intensive care setting — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5.1 — Coroners and Justice Act 2009 (c 25), s 7(2)

The deceased, who had Down’s syndrome, learning difficulties and was confined to a wheelchair, was taken to hospital with breathing difficulties. Her condition worsened and she was admitted to an intensive care unit where she was intubated and sedated. Although a mitt had been placed on one of her hands to prevent removal of the tube, she was still able to remove it which led to a cardiac arrest and her death. It was common ground that the deceased was of unsound mind for the purposes of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedom. The coroner decided that there had to be an inquest into the deceased’s death but that he had no reason to suspect that she had died “in state detention”, within the meaning of section 7(2) of the Coroners and Justice Act 2009, defined in section 48 as being “compulsorily detained” by a public authority, and therefore he would hold the inquest without a jury. The deceased’s sister sought judicial review of the coroner’s decision not to hold the inquest with a jury, on the basis that as a result of her hospital treatment the deceased had at the date of her death been deprived of her liberty for the purposes of article 5 of the Convention and therefore was in “state detention” when she died. The Divisional Court of the Queen’s Bench Division dismissed the claim, holding that there was no reviewable error in the coroner’s decision.

On the claimant’s appeal—

Held, appeal dismissed. Any deprivation of liberty resulting from the administration of life-saving medical treatment to a person fell outside article 5.1 of the Convention so long as the acute condition of the patient was not the result of action which the state wrongly chose to inflict on him and the administration of the treatment should not in general include treatment that should not properly be given to a person of sound mind in his condition according to the medical evidence; further, article 5.1(e) was not concerned with the treatment of the physical illness of a person of unsound mind. Applying the case law of the European Court of Human Rights to the present case, the deceased had not been 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. While she was physically restricted in her movements by her physical infirmities and by the treatment she received, the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. Accordingly there was no basis on which it could be said that there was a deprivation of liberty in the present case and therefore no reason to suspect “state detention” for the purposes of section 48(2) of the Coroners and Justice Act 2009. Accordingly, the coroner’s decision was correct (paras 10, 76, 81, 83, 88, 89, 95, 103, 113–116).

Austin v United Kingdom (2012) 55 EHRR 359, GC followed.

Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] AC 896, SC(E) distinguished.

Decision of the Divisional Court of the Queen’s Bench Division [2015] EWHC 2990; [2016] 1 WLR 2385 affirmed.

Appearances:

Jenni Richards QC and Victoria Butler-Cole (instructed by Bindmans LLP) for the claimant.

Jonathan Hough QC (instructed by Legal Services, Southwark London Borough Council) for the coroner.

Alexander Ruck-Keene (instructed by Browne Jacobson LLP) for the Intensive Care Society and Faculty of Intensive Care Medicine, intervening.

Joanne Clement (instructed by Government Legal Department) for the Secretary of State for Health and the Secretary of State for Justice, intervening.

Reported by: Nicola Berridge, Solicitor

External links

BAILII

ICLR

Alex Ruck Keene, 'Deprivation of liberty in intensive care - the Court of Appeal decides' (Mental Capacity Law and Policy blog, 26/1/17)

Ben Troke, 'Landmark judgment on deprivation of liberty in hospital - Ferreira v Coroner of Inner South London' (Browne Jacobson LLP, Youtube video, 26/1/17)

Ben Troke, 'Cheshire West kicked out of acute hospitals?' (Browne Jacobson website, 25/1/17)

Monidipa Fouzder, 'Supreme Court asked to consider deprivation of liberty ‘confusion’' (Law Society Gazette, 26/1/17)

Gillian Weatherill, 'ICU patients not deprived of their liberty says the Court of Appeal' (DAC Beachcroft website, 1/2/17)