R (LF) v HM Senior Coroner for Inner South London  EWHC 2990 (Admin)
CORONER — Inquest — Jury — Mentally incapacitated adult dying in intensive care unit — Whether deceased in “state detention” for purposes of relevant legislation — Whether coroner required to summon jury for inquest into death — Human Rights Act 1998, Sch 1, Pt I, art 5 — Coroners and Justice Act 2009, ss 7(2), 48(1)(2)
Regina (LF) v HM Senior Coroner for Inner South London
B;  WLR (D) 442
DC: Gross LJ, Charles J: 29 October 2015
A mentally incapacitated adult who died while in intensive care at a hospital was not, on the facts, in “state detention” at the time of her death for the purposes of the Coroners and Justice Act 2009, with the consequence that the coroner was entitled to hold an inquest without a jury.
The Divisional Court so held in dismissing a claim by the claimant, LF, for judicial review of the decision of the defendant, Her Majesty’s Senior Coroner for Inner South London, to conduct an inquest into the death of her sister without a jury. The principal ground of challenge was that the deceased had been deprived of her liberty in terms of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and therefore in state detention for the purposes of sections 7(2)(a) and 48(1) and (2) of the Coroners and Justice Act 2009 at the time of her death.
The deceased was a mentally incapacitated adult. She was admitted to hospital and diagnosed with pneumonia. Her condition deteriorated and she was transferred to the intensive care unit (“ICU”) where she was heavily sedated and intubated. Over the following days, the deceased remained sedated and on a ventilator. The sedation was intended to facilitate mechanical ventilation as a life-saving treatment intervention. While in the ICU, the deceased dislodged her endotracheal tube. Despite efforts at resuscitation, the deceased went into cardiac arrest and died. The coroner concluded that, in all the circumstances, he did not find reason to suspect that the deceased was in state detention at the time of her death.
Section 7 of the Coroners and Justice Act 2009, so far as material, provides: “(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— (a) that the deceased died while in custody or otherwise in state detention, and that … (i) the death was a violent or unnatural one.”
Section 48, so far as material, provides: “(1) In this Part, unless the context otherwise requires … ‘state detention’ has the meaning given by subsection (2). (2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998.”
Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, so far as material, provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law … (e) the lawful detention … of persons of unsound mind … 4. Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
GROSS LJ said that the coroner’s decision not to empanel a jury pursuant to section 7(2)(a)(i) of the 2009 Act flowed from his conclusion that he did not have reason to suspect that the deceased had died an unnatural death while “in state detention”, ie while “compulsorily detained” by a public authority: section 48(2) of the 2009 Act. The test to be applied was whether the coroner’s decision was “Wednesbury unreasonable” (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 22) or otherwise involved a misdirection in law. The 2009 Act was aimed at breaking down artificial distinctions between different forms of state custody. The wording “in state detention” (section 7(2)(a)) and “compulsorily detained” (section 48(2)) should be read as meaning a confinement imposed by a public authority, overriding the relevant person’s freedom of choice; in short, detention properly so called, by the state, in whatever form. “State detention” and “deprivation of liberty” under article 5 of the Convention had essentially similar, if not necessarily identical, meanings. The key to the proper scope of sections 7(2)(a) and 48(2) of the 2009 Act and to ensuring coherence with the article 5 jurisdiction lay in an intense focus on context and on the “concrete situation” before the court. The “acid test” for deprivation of liberty in Surrey County Council v P (Equality and Human Rights Commission intervening)B (“Cheshire West”) was continuous supervision and control coupled with the lack of freedom to leave. Compliance or acquiescence by a person to the curtailment of liberty, especially when that person lacked capacity, was neither here nor there. The purpose or reason for the measure was irrelevant when considering whether it constituted objective deprivation of liberty. Accordingly, the acid test was capable of application or extension to patients in some hospital or ICU settings. However, the notion that Cheshire West required all patients in an ICU (and other hospital settings) for more than a very brief period to be treated as subject to a deprivation of liberty, provided only that they lacked capacity to consent to the particular stage of treatment, would be mechanistic, unwarranted and divorced from the mischief it sought to address. Ultimately, whatever the true scope of the principle in Cheshire West, the question whether there had been a deprivation of liberty in any particular case was fact-sensitive and specific.
The coroner was entitled to conclude that the deceased had not been “in state detention” or “compulsorily detained” at the time of her death. The deceased remained in the ICU, not because she had been detained or deprived of her liberty but because for pressing medical reasons and treatment she was unable to be elsewhere. It was fanciful to suppose that the claimant would have sought to remove the deceased from the hospital while she was undergoing treatment in the ICU and therefore idle to consider what the hospital’s response would have been. Accordingly, there had been no error of law and the claim would be dismissed.
CHARLES J, agreeing with the result, said that “compulsorily detained” (section 48(2) of the 2009 Act) should not be shortened to “detention properly so called by the state, in whatever form.” The line of argument based on the 2009 Act had to be founded on the impact of the word “compulsory” and on there being a distinction between a compulsory article 5 detention and an article 5 detention. The use by Parliament of the word “compulsorily” in the definition of state detention was not redundant or merely reflective of an objectively assessed article 5 detention in which a consent given by or on behalf of the relevant person was irrelevant. The subjective element was relevant to the question whether the state’s obligation under article 5 arose and so to the determination of whether a person was deprived of his liberty. Giving effect to the word “compulsorily” in the statutory definition in the sense that it limited detentions to those that were imposed in a way that overrode the relevant person’s informed freedom of choice would promote the underlying intention and purposes of the 2009 Act which was directed to safeguards after death. The deceased had not been compulsorily detained for the purposes of the 2009 Act. Her freedom of choice had not been overridden in any sense and nothing had been unilaterally imposed on her. Further/alternatively the deceased had not been deprived of her liberty in breach of her article 5 rights and so was not in state detention for the purposes of the 2009 Act.
Appearances: Victoria Butler-Cole (instructed by Bindmans LLP) for the claimant; Jonathan Hough QC (instructed by Legal Services Southwark Council) for the defendant.
Reported by: Benjamin Weaver Esq, Barrister.
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