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Deprivations of liberty in hospital settings

Kate Egerton considers the case of R (Ferreira) v HM Senior Coroner for Inner South London [2015] EWHC 2990

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    Kate Egerton works in the human rights team at Leigh Day.  She has a particular interest in deprivation of liberty and best interest cases.  You can follow Kate on twitter on @KateEgerton1 
    A recent High Court judgment has caused further confusion regarding the test for identifying a deprivation of liberty. The Court considered whether a 45 year old woman called Maria, who had Down’s syndrome and a severe learning disability, was deprived of her liberty while receiving life sustaining treatment in an intensive care unit, and concluded she was not.

    This case was an important application of the “acid test” laid down by the Supreme Court in Cheshire West in the context of a hospital setting. In Cheshire West the Supreme Court held that where an individual is subject to constant supervision and control, and is not free to leave, they are deprived of their liberty, and that the purpose of their detention, no matter how benevolent, was irrelevant.

    The facts that gave rise to this case are briefly as follows: Maria had died in intensive care while heavily sedated and on mechanical ventilation, and an inquest was held into her death. The Senior Coroner held that she was not deprived of her liberty, and was therefore not in “state detention” at the time of her death; this meant there was no requirement to summon a jury. Maria’s sister challenged this decision.

    The starting point for the Court was that “state detention” and “compulsorily detained” should be given its natural meaning, in that it is “confinement imposed by a public authority, overriding the relevant person’s freedom of choice.” The Court reasoned that it was artificial to say that at the time of her death Maria was compulsorily detained as her freedom of choice had not been overridden.

    The Court was unable to distinguish a “deprivation of liberty” from “state detention” in this context. However, the Court held that the principles laid down in Cheshire West to identify a deprivation of liberty should not be applied without modification to the hospital setting. The judges held that a fact sensitive approach was required taking into account factors such as the length of time the treatment had been received, whether there was any change in that treatment and whether the patient previously had capacity. Unfortunately, this approach appears to run counter to the Supreme Court’s judgment in Cheshire West where the Court expressly said that the purpose of the detention was irrelevant when identifying a deprivation of liberty.

    The Court concluded that Maria was not in state detention at the time of her death, but was there to receive life sustaining treatment. It is not entirely clear from the judgment why the Court reached this decision as the reasoning from the two judges are not consistent. Furthermore, the judgment appears to be at odds with the Chief Coroner’s and Law Commission’s guidance on deprivations of liberty. Future cases will therefore need to be considered on a very fact sensitive basis.

    It is understood the High Court’s decision may be appealed and we hope that the Court of Appeal would reach a conclusion that is more consistent with the test laid down by the Supreme Court in Cheshire West.

    This judgment, and the present confusion it leaves, reinforces the need for specialist legal advice as soon as possible if someone is detained in a hospital setting and they do not have capacity to consent to that detention. A solicitor in Leigh Day’s Court of Protection team can advise on what legal action could be taken and how to fund it, including advising on whether public funding is available.

    (Leigh Day acted for the AIRE Centre in their intervention in the Supreme Court in the Cheshire West case.) 

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