Court of Appeal decides on important deprivation of liberty case

The judgment has important implications for NHS Trusts.

Synopsis

Maria Ferreira suffered from Down’s syndrome, severe learning disability, limited mobility and required 24-hour care which was provided principally by her sister, LF. Maria died while in intensive care in hospital.

Maria was admitted to hospital with a working diagnosis of pericarditis, pneumonia and possible pulmonary oedema. She disliked hospitals and found the procedure frightening. Her condition worsened so she was heavily sedated and transferred to the hospital’s intensive care unit (“ICU”).

Over the following days, she remained sedated and on a mechanical ventilator as a life-saving treatment intervention. While in ICU, the nursing staff put mittens on Maria’s hands to prevent her from reflexively grabbing at and disconnecting the endotracheal tube. A few days later, Maria dislodged the tube. Despite prompt attempts at resuscitation, Maria went into cardiac arrest and died.

Inquest

An inquest was held into Maria’s death. The Senior Coroner held that Maria was not deprived of her liberty for the purposes of Article 5 and was therefore not in “state detention” at the time of her death within the meaning in sections 7(2)(a) and 48(1) of the Coroners and Justice Act 2009 (“CJA 2009”). There was thus no mandatory requirement to summon a jury, as Article 2 ECHR was not engaged. Maria’s sister sought judicial review of this decision.

Decision of the Divisional Court

In October 2015, the application was refused by the Divisional Court. The Court recognised that it was difficult to distinguish the meaning of “deprivation of liberty” under Article 5 ECHR from “state detention” under the CJA 2009, but held that the Coroner had been entitled to conclude Maria was not in “state detention” in the ICU at the time of her death – she was there to receive life-saving treatment. It was artificial to say that Maria was kept in custody or confined by the state.

The reality was that Maria remained in the ICU, not because she had been deprived of her liberty but because, for pressing medical reasons and treatment, she was unable to be elsewhere. The Court made it clear that the lawfulness of the detention was not relevant – what mattered was whether or not at the time of death the deceased was in state detention.

The Court considered it unnecessary to ask whether the hospital staff would have refused to allow Maria to leave as it was “fanciful” to suggest that the Claimant would have sought to remove Maria in circumstances where she was receiving life-sustaining treatment. The Court also confirmed that there was no need for an inquest to be held in every case where an elderly person, whose care package amounted to a deprivation of liberty, died from natural causes in a care home. The Appellant (Maria’s sister) again appealed this decision to the Court of Appeal.

Decision of the Court of Appeal

The Court of Appeal upheld the decisions of the Coroner and Divisional Court. The Court held that there will, in general, be no deprivation of liberty in the context of the delivery of life-saving medical treatment.

In the leading judgment, Lord Justice Arden stated that any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1):

“so long as it is rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose”.

This meant 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 according to the medical evidence.”

Arden LJ held that there may be circumstances where a deprivation of liberty may arise and for which authorisation will be required. In the case of NHS Trust I v G [2015] 1 WLR 1984, a hospital considered that it might have to give obstetric care to a pregnant woman of unsound mind who objected to such treatment.

A court order was made authorising a deprivation of liberty and invasive medical treatment on a precautionary basis. In this case, the pregnant woman in question was to be prevented from leaving the delivery suite and might have been compelled to submit to invasive treatment, such as a Caesarean section. If these steps had to be taken, the treatment would be materially different from that given to a person of sound mind. By contrast, authorisation would not be required because an immaterial difference in treatment was necessitated by the fact that the patient is of unsound mind or because the patient had some physical abnormality.

The Court of Appeal distinguished Cheshire West on the basis that it was directed to the different situation of the living arrangements of those with unsound mind, and that it contained no guidance as to the position with regard to Article 5 ECHR in the urgent or intensive care context.

Arden LJ emphasised that Article 5(1)(e) is directed to the treatment of persons of unsound mind because of their mental impairment, so it does not apply where a person of unsound mind is receiving materially the same medical treatment as a person of sound mind, which is a matter for Article 8 ECHR.

Arden LJ also held that, even if the acid test was applied, neither Maria Ferreira or the majority of patients in ICU were free to leave and the true cause of their lack of freedom to leave was their underlying illness, a matter for which, except in special circumstances, the state is not responsible. This contrasts with the position of those in Cheshire West, where steps to be taken to prevent a person leaving their placement are taken because of their mental disorder.

The Appellant is seeking permission to appeal to the Supreme Court.

What does this mean for NHS Trusts?

Patients in ICU will not normally be deemed to be deprived of their liberty (unless there are exceptional circumstances). Their stay will therefore not require authorisation under the Mental Capacity Act.

How can Ward Hadaway help?

For further information on the issues raised by this update, please get in touch.