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Cheshire West kicked out of acute hospitals?

26 January 2017
In Ferreira v Coroner of Inner South London (26 January 2017) the Court of Appeal has delivered a landmark judgment on deprivation of liberty in the context of acute medical treatment that will be very welcome for providers of physical healthcare - for now at least.

Background

It is now more than three years since Maria Ferreira, a young woman with a learning disability, died in the intensive Care Unit (ICU) at King’s College Hospital on 7 December 2013, but the inquest into her death has still not been held due to an ongoing dispute about whether or not the inquest should be heard with a jury. It is a case that goes to the heart of the very controversial law on deprivation of liberty and its application in an acute medical setting.

The leading judgment on deprivation of liberty is Cheshire West (Supreme Court, 19 March 2014), which established the “acid test” to identify whether a person is confined (subject to continuous supervision and control and not free to leave a place). Where a person is confined, they lack the capacity to consent to it and this is imputable to the state then this engages Article 5 of the European Convention on Human Rights (the right to liberty and security) and it will only be lawful where it has been authorised by a due legal process, including a right to challenge.

But that case was about three care packages in the context of long term placements in supported living, with the state deciding where the person should live, as well as all significant aspects of their care. Since then there have been attempts to contextualise Cheshire West and disapply that apparently universal test from other settings (most notably, and largely unsuccessfully, by Mostyn J in a series of cases about domiciliary care in a person’s own home).

At the other end of the spectrum there has been relatively little case law about the interpretation of deprivation of liberty in an acute physical healthcare setting, and nothing about the apex of this, in intensive care, where it might be felt that people are under uniquely “continuous supervision and control” and (arguably) “not free to leave”.

The relevance for inquests is that the Coroners and Justice Act 2009 (pre-dating Cheshire West) requires that a death while “in state detention” must have an inquest, and that such an inquest must be held with a jury if the death was unnatural, violent or the cause of death is unknown. The Chief Coroner’s Guidance interpreted state detention to include people who are under a DoLS authorisation. (As it happens, that law is about to be amended by the Policing and Crime Bill 2017 to specifically exclude DoLS cases from the definition of “state detention” for the purposes of inquests, but that comes too late to avoid the dispute in this case).

Nobody had considered the question of whether Maria was deprived of her liberty in the course of her medical treatment, and so there was no DoLS application or authorisation. The coroner decided that no jury was required, and the Divisional Court (Gross LJ and Charles J reaching the same conclusion by different routes) upheld his conclusion. On her sister's challenge to that conclusion, it fell to the Court of Appeal to consider, essentially, whether the Cheshire West acid test should be applied directly in the acute hospital setting. 

Court of Appeal Decision

Their short answer is “no” – Maria should not be treated as having been deprived of her liberty, and we have the great advantage of a single judgment by one judge – Lady Justice Arden – with which the two other judges simply agree. Even so, it is a lengthy judgment, and the reasons are not straightforward or uncontroversial. It will need some time to consider the implications, but at first blush it seems to be built on 4 key planks:

1Context – Arden LJ says that the context of the cases in Cheshire West was very different, and so the case can be “distinguished” – ie the Court of Appeal do not have to follow it. In particular, leaning on a European Court of Human Rights judgment in Austin v UK (the case of police kettling May Day protesters) she says that there are some contexts in which movement is restricted – regardless of capacity – in which Article 5 is not engaged, eg motorway travel, public transport or football crowds. The “urgent or intensive care” context, she says, is also such a case.

Under a striking sub-heading “life saving treatment: in general no deprivation of liberty” she says:

…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) “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, our emphasis)


She then explains that:

In my judgment, what these qualifications mean is in essence that the acute condition of the patient must not have been the result of action which the state wrongly chose to inflict on him and that the administration of the treatment cannot in general include treatment that could not properly be given to a person of sound mind in her condition according to the medical evidence”. (para 89)

She says that, in policy terms, the need for scrutiny of long term residence and care package in Cheshire West does not demand the same approach in acute medical treatment:

I also accept the submission that the policy reasons for finding a violation in Cheshire West do not apply in this case. 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).

2. Non–discrimination – as that shows, a key part of her reasoning is, essentially, “non discrimination”, and Arden LJ repeats that it is important that P’s medical treatment is not materially different from another patient who is not of unsound mind.

“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).

3. Free to leave – as a fall back Arden LJ concludes that even if she is wrong about the non-engagement of Article 5 altogether, Maria Ferreira would not have met the Cheshire West acid test anyway, as she was not “not free to leave”. As a matter of fact there was some dispute about whether the Trust would have allowed her to leave, if her sister had tried to remove her, but crucially Arden LJ said that this test does not depend on that hypothetical question. Instead it must be P herself who wants to leave, and she must be prevented by the state from leaving, rather than their physical inability to leave.

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. The 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 (in the absent of special circumstances) the state is not responsible. It is quite different in the case of living arrangements for a person of unsound mind. If she is prevented from leaving her placement it is because of steps taken to prevent her because of her mental disorder.” (para 99, our emphasis)

4. Resources – finally, though Arden LJ echoes the consensus among the counsel involved that resources alone cannot justify a distortion of the legal framework, she clearly finds it comforting that she has been able to avoid the huge impact on resources that would have followed from a different decision.

The Intensive Care Society and Faculty of Intensive Care Medicine intervened in the Court of Appeal, filing a witness statement by Dr Daniele Bryden (ICU Consultant in Sheffield Teaching Hospitals) and written submissions by counsel precisely to ensure that the Court was well informed of the practical implications of its judgment. Dr Bryden explained the reality of life in ICU, the time it takes to deal with a DoLS authorisation, and the impact on relationships with patients and families.

Unusually, LJ Arden quotes extensively from Dr Bryden’s statement as an appendix to the judgment, concluding with Dr Bryden’s conclusion about the commitment of resources to dealing with identification and authorisation of deprivations of liberty in ICU that:

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”.

Judgment

Implications 

It will take some time to digest the implications of this very significant judgment, and for consensus to emerge among practitioners, lawyers and the lower courts how to apply it.

Though the narrow context of the facts is the ICU, the reasoning seems to be applicable throughout the acute in patient healthcare setting, and the heading “life saving treatment: in general no deprivation of liberty” gives a pretty clear steer as to Arden LJ’s intentions.

Arden LJ does give an example of the case of an NHS Trust v FG, where an obstetric plan was approved by the court including potentially physical restraint and sedation as a result of FG’s incapacitous non-compliance, where she says that this is rightly to be regarded as engaging Article 5, and therefore needs court authorisation of the deprivation of liberty.

But short of that extreme scenario and while it is difficult to draw a clear line around a definition of “life saving treatment”, the reasoning enables providers of in patient physical healthcare to say that the judgment establishes that any treatment of physical health will not in itself constitute a deprivation of liberty, where it is materially the same treatment that would be given to any patient, regardless of their capacity.

More questions will surely be raised, both about this judgment and in the ongoing attempt to confine Cheshire West to its context of long term living arrangements. In time, for instance, we will have to see how the court will deal with a hospice, where the stay may be relatively short, but it will be hard to argue that the objective there is provision of “life saving treatment”, though it is commonly felt that DoLS is a rather heavy handed way of dealing with that scenario.

But the Supreme Court may well still get the last word again. At the time of writing we know that an application has been made by the Ferreira family for permission to appeal to the Supreme Court.

For now, healthcare providers, and probably the local authorities currently dealing with the colossal backlog of DoLS referrals, will be delighted and find this judgment grounded in common sense and hugely welcome.





NOTE - we acted (pro bono) for the Intensive Care Society and Faculty of Intensive Care Medicine in their joint submissions as intervening parties.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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