R (Ferreira) v HM Senior Coroner for Inner South London
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice McFarlane,Mr Justice Cranston |
| Judgment Date | 26 January 2017 |
| Neutral Citation | [2017] EWCA Civ 31 |
| Docket Number | Case No: C1/2015/3844,C1/2015/3844 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2017 |
[2017] EWCA Civ 31
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Queen's Bench Division, Divisional Court
[2015] EWHC 2990
Lord Justice Gross and Mr Justice Charles
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McFarlane
and
Mr Justice Cranston
Case No: C1/2015/3844
Jenni Richards QC and Victoria Butler-Cole (instructed by Bindmans LLP) for the Appellant
Jonathan Hough QC (instructed by London Borough of Southwark Legal Department) for the Respondent
Kings College Hospital NHS Foundation Trust for the Interested Party did not attend
Alexander Ruck Keene (instructed by Browne Jacobson LLP) for the 1 st Intervener
Joanne Clement (instructed by Government Legal Department) for the 2 nd Intervener
Hearing dates: 13 to 14 December 2016
Approved Judgment
SUMMARY
On 7 December 2013, Maria Ferreira, whom I shall call Maria and who had a severe mental impairment, died in an intensive care unit ("ICU") of King's College Hospital, London ("the hospital"). The Senior Coroner for London Inner South, Mr Andrew Harris, ("the coroner") 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. On 29 October 2015, the Divisional Court (Gross LJ and Charles J) held that this decision was not open to judicial review and this appeal is from that decision.
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 CJA 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 ("the Convention") and that accordingly Maria was in "state detention" when she died.
Article 5(1) of the Convention provides that, subject to six exceptions:
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….
There is an exception for the lawful detention of persons of unsound mind as follows:
(e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;…
The appellant's principal argument on this appeal is that "state detention" includes, in the case of persons of unsound mind, the deprivation of liberty for the purposes of Article 5(1), and therefore the meaning given to deprivation of liberty for those purposes by the Supreme Court in the recent case of Surrey County Council v P, Cheshire West and Chester Council v P [2014] UKSC 19, [2014] AC 896 (" Cheshire West") applies. I shall need to consider that decision in detail below but in summary the Supreme Court held that three individuals, who were of unsound mind due to their learning difficulties, had been deprived of their liberty as they were under continuous supervision and control in the placements (that is, with the families or care homes) arranged for them by their local authorities, and were not free to leave those placements. Thus the two components of an "acid test" which the Supreme Court formulated in that case for determining when a person of unsound mind was deprived of her liberty were satisfied. This was the case even though the individuals enjoyed activities outside their placements and were content with their situations, and the placements were in their best interests.
Section 5 of the Mental Capacity Act 2005 ("the MCA") enables a hospital to give treatment to a person who, like Maria, lacks capacity to consent to it where the treatment is in the patient's best interests. However a hospital may not give treatment which deprives a patient who is unable to give consent of their liberty without an order of the court or the appropriate authorisation under schedule A1 to the MCA: see section 4A of the MCA. It is common ground that the hospital could if needs be have used the procedure in schedule A1. This includes a form of "urgent authorisation". It requires the treating hospital to complete a quantity of paperwork. The authorisation can last for a maximum of 14 days, which may be adequate in most cases of patients in ICUs.
The hospital did not seek any authorisation for treating Maria at any time. Section 4B of the MCA also gives authority to deprive a person of her liberty in order to give life-sustaining treatment but this applies only where there is a pending application to the Court of Protection.
The Intensive Care Society and Faculty of Intensive Care Medicine (together "the ICS/FICM"), interveners, have filed a detailed witness statement by Dr Daniele Bryden, a consultant in intensive care medicine at Sheffield Teaching Hospital NHS Trust, about the potential impact of a need to seek authorisation for a deprivation of a patient's liberty when the patient is in intensive case. This evidence is not challenged. Dr Bryden states that obtaining authorisation for a deprivation of liberty would divert medical staff in an ICU from caring for the patients. In any event, the vast majority of patients will be physically unable to leave because of their condition and because of the difficulty of withdrawing their treatment to enable them to leave safely. I have summarised Dr Bryden's evidence in the Appendix to this judgment.
Following the decision in Cheshire West, the Law Society at the request of the Department of Health published Deprivation of Liberty: A Practical Guide (April 2015) giving guidance on the meaning of deprivation of liberty of a person with a mental disorder. Further important guidance has been issued by the Chief Coroner (see Chief Coroner's Guidance No 16 on Deprivation of Liberty Safegaurds (2014)) and the ICS ( Deprivation of Liberty in Intensive Care (2014)). The Scottish Law Commission published a report on deprivation of liberty in the context of persons without capacity in October 2014 ( Report on Adults with Incapacity (Scots Law Com no 240)), and the Law Commission of England and Wales is engaged on preparing a report on mental capacity and deprivation of liberty (see Mental Capacity and Deprivation of Liberty Interim Statement (May 2016)). While fully respecting the value of this guidance and work as regards the practical implications of the decision in Cheshire West, this judgment is concerned with a point of law on which I must form my own view, and in all the circumstances it is not necessary for me to summarise this guidance.
Summary of my conclusion
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 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 ("the Strasbourg Court") 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.
Plan of this judgment
I shall set out the background by outlining the key events relating to Maria's death, identifying the relevant legislation concerning the circumstances in which a coroner must hold an inquest with a jury and summarising the relevant part of the decision of the coroner in this case not to hold an inquest with a jury.
I will then examine the important judgments in issue in this case: the decision of the Supreme Court in Cheshire West, and that of the Divisional Court in this case.
Then I will turn to the submissions (as far as relevant to the resolution...
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