@BJhealthlaw

Deprivation of liberty in the acute medical setting

8 February 2017

@BJhealthlaw

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• Recap – Article 5 ECHR, Cheshire West,

impact

• Maria Ferreira

• Coroner’s decision and judicial review

• Court of Appeal

– reasons

– implications

– questions

@BJhealthlaw

“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”

@BJhealthlaw

Art 5(1)(e) - lawful detention… of persons of

unsound mind, alcoholics or drug addicts or

vagrants

And

“entitled to take proceedings by which the

lawfulness of his detention shall be decided

speedily by a court…” (Art 5(4))

@BJhealthlaw

• supported living care package for 3

individuals

• lacked capacity to consent, imputable to

the state, more than “non negligible”

period of time

• objective DoL – “the acid test”

@BJhealthlaw

• “… features consistently regarded as key

in the [ECHR] jurisprudence - that [P] was

under continuous supervision and control

and was not free to leave”

• NB – good intentions / purpose / relative

normality / compliance are not relevant to

existence of a DoL - “A gilded cage is still

a cage”

• more than tenfold increase in Deprivation

of Liberty Safeguards (DoLS) referrals

• huge increase in number of cases that

need CoP approval For a “community

DoL” – Re X

• inquests – Coroners and Justice Act 2009

@BJhealthlaw

• if the deceased died “while in custody or

otherwise in state detention”.

– then there must be an inquest (if only on

paper), but

– if such a death was violent or unnatural or

the cause of death is unknown then the

inquest must be held with a jury

• Chief Coroner’s guidance December 2014

• Policing and Crime Act 2017

@BJhealthlaw

• especially re the family home /

imputability to the state, mostly Mostyn

J, and “free to leave”

– KW v Rochdale MBC

– Mrs L v W City Council (Bodey J)

• but

– KW v Rochdale (Court of Appeal), 20.10.15

@BJhealthlaw

• aged 45, disliked hospitals

• admitted to Hospital with pneumonia 19.11.13

• deteriorated and moved to ICU 2/3.12.13

• died 7.12.13

• Maria had Down’s syndrome and learning

disability – lacked capacity to make decisions

about medical treatment

• Coroner decided on inquest without jury – still

awaited!

• Coroner was right

• Little difference between state detention /

DoL - Maria was neither

• context of Cheshire West was long term

care and residence – living arrangements

• it should not be “mechanistically” applied

in cases of (undisputed) medical treatment

• Coroner was right – neither in state

detention nor DoL

• “State detention” for CJA means

“compulsorily detained” (makes more

sense if overriding a capable decision?)

(134)

• no dispute over treatment needs

• “Wholly artificial to say that she was

compulsorily detained…” (Gross LJ at 86

and Charles J at 130)

• Nonsense to hypothesise a theoretical

attempt to remove her (cf the Law

Society Guidance)

“..the reality was that Maria remained in

the ICU not because she had ben detained or

deprived of her liberty but because for

pressing medical reasons and treatment she

was unable to be elsewhere” (Gross LJ, 86 –

and Charles J, 159)

@BJhealthlaw

• Lady Justice Arden (and McFarlane LJ;

Cranston J)

• family’s appeal, resisted by the Coroner

• intervening parties –

– intensive care society and faculty of

intensive care medicine

– secretaries of state for health and justice

@BJhealthlaw

“The coroner’s decision was correct in

law…”

• “She was being treated for a physical

illness…”

• “…the root cause of any loss of liberty

was her physical condition, not any

restrictions imposed by the hospital”

• context (distinguishing Cheshire West

and disengaging Article 5)

• non–discrimination

• not “not free to leave”

• resources

• “Cheshire West is distinguishable since it

is directed to a different situation,

namely that of living arrangements for

persons of unsound mind”.

• “I have not identified any guidance in it as

to the position with regard to Article 5 in

the urgent or intensive care context”(para

90)

• “Cheshire West is a long way from this

case on its facts and that, in my

judgment, indicates that it is

distinguishable from the situation of a

patient in Intensive Care” (para 99)

• “…the policy reasons for finding a

violation in Cheshire West do not apply in

this case”. (para 93)

• “life saving treatment: in general no

deprivation of liberty”

– “…any deprivation of liberty resulting from

the administration of life-saving treatment

to a person falls outside Article 5(1) (as it

was said in Austin)…” (para 89)

• “commonly occurring restrictions on

movement” – eg football, motorway

traffic, public transport – exist outside Art

5, and regardless of soundness of mind

@BJhealthlaw

• …“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”.

(para 89, quoting Austin)

@BJhealthlaw

“The purpose of Article 5(1)(e) is to protect

persons of unsound mind. This does not

apply where a person of unsound mind is

receiving materially the same medical

treatment as a person of sound mind.

Article 5(1)(e) is thus not concerned with

the treatment of the physical illness of a

person of unsound mind.” (para 95)

@BJhealthlaw

• if a patient is being treated differently as

a result of being of unsound mind, then

Article 5 may be engaged,

notwithstanding life saving context

• An NHS Trust v FG – coercive obstetric

care for P of unsound mind - would still

be a DoL

@BJhealthlaw

• “There is in general no need in the case

of physical illness for a person of

unsound mind to have the benefit of

safeguards against the deprivation of

liberty where the treatment is given in

good faith and is materially the same

treatment as would be given to a person

of sound mind with the same physical

illness”. (para 93)

@BJhealthlaw

• even if wrong on context issue, Maria was

free to leave

• question is P’s own wish to leave, not

that of relatives to remove her

• Cheshire West acid test only applies

where the state action (supervision and

control) is the reason for lack of freedom

to leave

@BJhealthlaw

• “In the case of a patient in intensive

care, the true cause of their not being

free to leave is their underlying illness,

which was the reason why they were

taken into intensive care.” (para 99)

• “The real cause is their illness, a matter

for which (in the absence of special

circumstances) the state is not

responsible. It is quite different in the

case of living arrangements for a person

of unsound mind.” (para 99)

• No evidence here that the Trust would

have stopped her if Maria wanted to

leave

@BJhealthlaw

• Even if wrong on conclusions about

Article 5, there’s no “clear and

consistent” ECHR case law that treatment

in ICU engages Article 5

• So not obliged to follow ECHR case law in

interpreting “in state detention”

Resources implications are not determinative, but

“the evidence of Dr Bryden set out in Appendix 1 to this

judgment powerfully supports the conclusion that

treatment in an ICU is not in general appropriately

treated as a deprivation of liberty. In short, to require

authorisation of the deprivation of liberty in what would

be a normal ICU case would involve a significant dilution

and distraction of clinical resource, time and attention.

That must inevitably risk jeopardising the outcome for

all ICU patients, for no apparent policy reason” (111)

“Ultimately, this all detracts from the real

priorities for ICU staff; the investigation and

treatment of critically unwell patients, their

recovery and rehabilitation, and the safe and

effective delivery of patient care”.

Dr Bryden, Sheffield Teaching Hospitals NHS Trust

@BJhealthlaw

• the last word? Application for leave to

appeal has been made to Supreme Court

• implications, and application – in ICU, but

also especially in other settings?

• impact on Cheshire West?

@BJhealthlaw

• “…any deprivation of liberty resulting from the

administration of life-saving treatment to a person falls

outside Article 5(1)” (89) - [better to say no DoL at all?]

• “Moreover, the reason for his detention was relevant, and

thus the fact that a person is deprived of his liberty in his

own interests may prevent the deprivation of liberty from

being a relevant deprivation of liberty for the purposes of

Article 5” (85 – re Nielsen v Denmark)

• “I assume that there could be no lawful decision for her to

leave if, as seems likely in Maria’s case, she lacked capacity

to make that decision, unless the court made an order to

that event.” (96)

@BJhealthlaw

• “Life saving treatment”?

• unavoidable, and minimum required,

necessary to avert a real risk of serious injury

or damage? (per Austin)

• any “urgent or intensive care”?

• any “treatment of the physical illness of a

person of unsound mind”?

@BJhealthlaw

• medical treatment v living arrangements

– where in the continuum does Cheshire

West start to apply?

• physical healthcare v mental healthcare ?

• “context” v purpose ?

• in patient / other settings - eg Hospice?

@BJhealthlaw

• especially for someone who is physically

unable to do so?

– Ferreira – P must want to (and be able to)

leave

– Cheshire West – DoL must mean the same

regardless of disability

• if difference is distinct contexts – 2 tests?

@BJhealthlaw

• Resonance with

– CoA in Cheshire West – normality / purpose (do

courts trust doctors more than social workers?!)

– Mostyn in KW v Rochdale – not free to leave

negated by inability to leave

• Cheshire West Supreme Court

• Ferreira CoA

• Prospects in the Supreme Court?

@BJhealthlaw

• Current Chief Coroner’s Guidance is

wrong – and will need to be updated post

Policing and Crime Act 2017 anyway

• What about “unauthorised” DoL deaths?

• Does Coroner need to consider whether

hospital treatment of P was different as a

result of unsoundness of mind?

@BJhealthlaw

• ICU and “life saving treatment” is generally no

DoL (if materially the same for any patient)

• if physical healthcare treatment is different – then

consider Art 5/8 (Article 3)?

• no reason in principle that this should be limited

to ICU only

• But as continuum goes from (urgent) “treatment”

to “living arrangements”, then Cheshire West

applies more clearly

@BJhealthlaw

• context is primary reason for the

judgment, so exercise caution before

relying on “free to leave” argument,

especially in wider context and outside

hospital

• nothing in this undermines Cheshire

West’s rationale for identifying DoL in

care homes, supported living or in the

community

We have created a dedicated

site for the most up to date

information and comment on

the key cases affecting Mental

Capacity and Deprivation of

Liberty: https://www.brownejacobson.com/he

alth/training-and-resources/mental-

capacity-and-deprivation-of-liberty-

hub

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

ben.troke@brownejacobson.com | 0115 976 6263