Inquest Team – February 2017

Deprivation of Liberty Safeguards (DoLS)

Cited Cases

• Luisa Ferreira v Senior Coroner for Inner South London [2017] EWCA Civ 31

• P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19

• R v Inner North London Coroner, Ex p Linnane [1989].

Issue

At the Albion Inquest Seminar in 2016, I presented a talk about the Chief Coroner’s Guidance, in particular, I focussed on the guidance in relation to DoLS.

In that talk I referred to the High Court case of Luisa Ferreira v Senior Coroner for Inner South London (2015) (in terms of the case being reported, it is reported as LF rather than Ms Ferreira’s full name)… which caught my attention due to the ingenious argument being pursued as to what amounted to ‘detention’ in a hospital setting. That case has now had the benefit of Court of Appeal scrutiny and, therefore, it is time for an update.

A Little Background

Where a patient or person is detained, on medical grounds, a DoLS has to be submitted. There is little more to be said about prisoners, or those in a police cell, for instance, or those detained under the Mental Health Act; all fall easily within the definition of deprivation of liberty.

The primary case in this area is P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19 (a DoLS case).The Supreme Court stated that the purpose of Article 5 was to ensure that people were not deprived of their liberty without proper safeguards, and decided (by a majority) that deprivation of liberty arose when the person concerned ‘was under continuous supervision control and was not free to leave’. It did not matter that the patient in hospital, or the resident of a care home, was content or compliant or voiced no objection. Of course, not all of the judges agreed, Hodge LJ, for instance, voiced his disquiet.

This leads onto the case of Ferreira. In this case, the deceased, Maria, was an adult female who happened to have had downs syndrome.

The Facts

Maria had various difficulties, some of which were significant, including mobility. Her care was funded by the local authority and her carer was, predominantly, her sister. Maria became unwell and was admitted to a local hospital, Kings College Hospital, London. Her condition deteriorated and she was admitted to the ICU. A few days later Maria died, after apparently pulling out her own ventilator tube.

Part of the claimant’s later argument, that Maria was detained, referenced that restraint mittens were used, to prevent her from pulling her ventilation tube out. This was part of the reason the claimant said that her sister was deprived of her liberty. Unfortunately, the hospital didn’t have enough mittens; so on the day of her death, only one mitten was worn by Maria.

The main question posed was whether she was detained, or ‘in state detention’ whilst in ICU. If she was in state detention, notwithstanding the lack of a deprivation of liberty safeguarding authorisation, then there must be a jury inquest as per ss.7(2)(a) and 48(1) and (2) of the Coroners and Justice Act 2009 (“the CJA 2009”). The relevant test is ‘reason to suspect’ someone died whilst being detained (see the old case of R v Inner North London Coroner, Ex p Linnane [1989]).

The Coroner found as follows:

“She had not been expressly prevented or prohibited from leaving a specified place. She had not been formally deprived of her liberty by authorisation, nor detained under Mental Health section.“

The Argument

On behalf of the claimant, the following question was posed; what would the doctors have said/done in circumstances where Maria or her sister sought her discharge? The rhetorical answer given is that the medical staff would have refused her discharge, ergo, she was detained (unknowingly). The claimant submitted that the widened landscape for detention, post Cheshire West, also applied in Maria’s case.

If correct, the ramifications of this argument would be significant. Imagine if every patient (with or without capacity) who was being treated for more than the briefest period in ICU, for instance under sedation, could be said to be ‘detained’. If the cause of death is not known, this would automatically trigger a jury inquest.

The High Court rejected the argument.

On Appeal

The argument was resurrected on appeal.

Nevertheless, Lady Justice Arden, giving the leading judgment found as follows:

“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.”

Conclusions

The Judgment should be read in full. However, in general terms, Ferreira has limited the effect of Cheshire West to those in a long-term care setting.

Ordinarily, whatever their capacity, if a person finds themselves in ICU they will not be deemed to have been ‘detained’, they were being treated.

 

Richard Shepherd