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

External links

BAILII

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)