In R (Ferreira) v HM Senior Coroner for Inner South London & Ors the Court of Appeal has decided that a coroner was correct in his original decision that no jury was required for an inquest into the death of an incapacitated patient who died while she was in intensive care.
The appellant (who is the deceased’s sister, Luisa) argued in the Divisional Court in 2015 and again in the Court of Appeal in 2016 that a coroner is obliged to hold an inquest if a person dies “in state detention” under the Coroners and Justice Act 2009. She argued that, because her sister Maria received hospital treatment in intensive care, she had been deprived of her liberty at the date of her death for the purposes of Article 5 of the European Convention on Human Rights (the Convention). As a result of her “state detention” the coroner was obliged to hold an inquest with a jury.
On 26 January 2017,the Court of Appeal re-stated the Divisional Court’s original decision (although for slightly different reasons) that, in general, there will be no deprivation of liberty in the context of life sustaining treatment and that, at the time of Maria’s death, she was not deprived of her liberty.
Lady Justice Arden’s reasons for her decision are summarised below:
- “State detention” is not a term taken from the Convention and does not always have the same meaning as “deprivation of liberty”. Not all compulsory detentions are within the scope of Article 5.
- An exception to the application of Article 5 is a category of interference described as “commonly occurring restrictions on movement”.
- Life sustaining treatment falls within the category of “commonly occurring” as it is a well-known consequence of a person’s condition when such treatment is required.
- The resulting consequences of the “restrictions of movement” would apply to a person of sound or unsound mind.
- Any deprivation of liberty as a result of life sustaining treatment is outside Article 5 “so long as it is rendered unavoidable as a result of circumstances beyond the control of the authorities and it is necessary to avert a real risk of serious injury or damage and is kept to the minimum required for that purpose”.
- There is generally no need for there to be safeguards against the deprivation of liberty for a person without sound mind when receiving treatment for physical illness, if it would be given for a person with sound mind for the same physical illness.
- In this case the deceased’s treatment was, in principle, the same as that which would have been given to a person who was of sound mind. To put this into context with an example, this logic would not apply in a situation where there is a deprivation of liberty to prevent a women of unsound mind leaving a delivery suite to ensure that she had a caesarean section. The difference is that this treatment would be very different to that given to a person with sound mind.
- Ferreira is distinguishable from Cheshire West which was directed to a different situation – that of living arrangements for persons of unsound mind. There is no guidance in it as to the position with regard to Article 5 in the urgent or intensive care context.
- Bournewood was a very different situation from the present case too.
- While there was continuous supervision and control in this case, there was not a lack of freedom to leave based on the facts. The real reason that Maria was not able to leave intensive care was the result of her underlying illness (which was the reason she was taken to intensive care) and not as a result of “state action”.
- A person may have been rendered unresponsive by reason of treatment they have received, such as sedation, but while that treatment is an immediate cause, it is not the real cause. The real cause is their illness, a matter for which the state is not responsible.
- The Coroners and Justice Act 2009 does not include ICU treatment as “state detention” because there is no clear and constant case law from Strasbourg that such treatment involves a violation of Article 5.
- The court had 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.
This decision does limit the scope of jury inquests in cases of physical illness which is welcome news for providers of acute and urgent medical care. Jury inquests are without exception longer, more costly, time consuming and very often result in conclusions that are unexpected on the facts.
The appellant is, however, seeking permission to appeal to the Supreme Court, so the debate may not have reached its final conclusion just yet!
As many will be aware, local coroners will no longer need to conduct a formal inquest for every person who dies under a DOLS authorisation under the Mental Capacity Act 2005 following an amendment to the Policing and Crime Bill which is due to come into force later this year. You can find out more about the amendment on our health and care blog