Deprivation of Liberty Safeguards: Life-saving treatment

R (oao Ferreira) -v- HM Senior Coroner for Inner South London & Ors [2017] EWCA Civ 31

The Court of Appeal handed down its judgment last week in respect of a patient, MF, who passed away in ICU. MF’s death was reported to the coroner who confirmed that an inquest would be held into her death, but that there was no obligation on him to empanel a jury. The family appealed this decision on the grounds that, notwithstanding that there was no Deprivation of Liberty Safeguards (DOLS) authorisation in place, the fact that she was being cared for in ICU meant that she was de facto being deprived of her liberty. Consequently, she would be considered to be in state detention and therefore the coroner was obliged to empanel a jury to hear the inquest under Section 7 of the Coroners and Justice Act 2009 (CJA 2009).

The Divisional Court rejected the family’s argument finding in favour of the coroner. The family consequently appealed to the Court of Appeal (CoA).

Held

The CoA held that the coroner had not erred in his decision not to empanel a jury. The rationale for this was threefold:

1. The root cause of MF’s loss of liberty was her physical condition, rather than due to any restrictions imposed on her by the hospital. In reaching this conclusion, the CoA compared the situation whereby a patient requires life-saving medical treatment and a situation whereby the treatment to be given is materially different between a patient with capacity (who would be able to refuse treatment) and a patient without capacity.
2. The CoA did not consider that the acid test from Cheshire West (i.e. (1) is P subject to continuous supervision and control and (2) is P free to leave) would apply. In any event, the CoA ruled that the second limb of the acid test was not satisfied. The CoA concluded that whilst it is unlikely, in an ICU setting, that a patient would seek to leave, in the event that they did seek to leave, there was no evidence that the hospital would have gone so far as to prevent them from leaving if there was a lawful decision that they should do so. It should be noted at this point that there was no argument proposed, either at the time or during the subsequent proceedings, that MF should not have been treated in ICU.
3. It would be unrealistic to conclude that the provisions of Article 5 ECHR (right to liberty and security) would apply where a person of unsound mind is receiving materially the same treatment that a person of sound mind would receive in similar circumstances. Treatment of that nature should properly fall to Article 8 ECHR (right to a private and family life).

Comment

Although this was an appeal of a coronial decision, the decision is likely to be of greater interest to those considering whether to make a DOLS application. The Policing and Crime Bill (which confirms that those under a DOL regime are not considered to be ‘in state detention’ for the purposes of the CJA 2009) is awaiting Royal Assent with the commencement date expected to be April 2017. 

We understand that permission is being sought to appeal this decision to the Supreme Court.  In the meantime, however, when considering whether a patient is being deprived of his/her liberty, and consequently whether an authorisation should be sought, healthcare organisations should consider:

1. Are the restrictions on a person being able to leave due to the patient’s physical condition, or restrictions being imposed by the hospital?
2. Is the treatment being given to the patient without capacity materially different to that which would be given to a patient with capacity in similar circumstances?
3. Are the restrictions in place for the purposes of administering life-saving medical treatment?

It is important that all staff are reminded that the DOLS regime should be considered for all patients who are under restrictions, even if those restrictions are considered to be due to physical constraints, rather than hospital imposed restrictions. Where there is any doubt, assistance should be sought from the healthcare organisation’s legal department.