Intensive care, and the outer limits of Cheshire West

6 November 2015 by Michael Deacon

The Queen (on the application of LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)

Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest.

This involved the High Court in examining the relatively broad definition of an Article 5 ECHR “deprivation of liberty” set out in the Supreme Court case of Surrey County Council v P [2014] AC 896 (“Cheshire West” – see here).  There was held to have been no state detention on the facts of this case, but the route by which the court, and Gross LJ in particular, arrived at that conclusion is of broader interest.

Summary

The Claimant is the sister of a 45 year-old lady, Maria Ferreira, who suffered from Down’s syndrome and who had a severe learning disability and limited mobility. Maria sadly died from respiratory failure whilst in intensive care in Kings College Hospital, the circumstances of the death being the subject of an inquest.

The coroner decided not to hold a jury inquest, finding that there was no reason to suspect that Maria had died whilst in state detention. The Claimant challenged that decision, founding in part on the Cheshire West statement of principle that, in cases involving the care of the physically or mentally disabled, the “acid test” will be whether it can be said that there has been continuous supervision and control and that the person was not free to leave.

The coroner’s position was that it was simply unreal to characterise a patient’s confinement by virtue of their physical ill-health health to intensive care as “state detention”, and that Cheshire West should not apply to such a scenario. That position was evidently underpinned by one of pragmatism, as it was pointed out that if intensive care treatment constituted a deprivation of liberty, then not only would jury inquests be required in every such case, but a significant administrative burden would be placed on hospitals to establish a system for invoking one or other of the routes established under the Mental Capacity Act 2005 for lawfully authorising the deprivation of patients’ liberty.

The issue for the court was whether the Coroner’s decision was Wednesbury unreasonable or involved an error of law. At its root, the court’s task involved a factual assessment. However, the court was evidently conscious of the potentially far-reaching impact of its application (or otherwise) of Cheshire West to the intensive care scenario. Both judges adopted different reasoning in deciding that there had been no state detention.

Gross LJ, taking into account that the phrase “state detention” is defined for the purposes of the CJA as being where one is “compulsorily detained”, held that the former phrase bears an essentially similar if not identical meaning to the term “deprivation of liberty” under Article 5 ECHR. However, he nevertheless held that the acid test in Cheshire West should not apply (paragraph 76):

“…the notion that Cheshire West requires treating all patients in an ICU… for more than a very brief period as subject to a deprivation of liberty provided only that they lacked capacity to consent to the particular stage of treatment, would involve a wholesale extension rather than an application of that authority…any such extension would be mechanistic, unwarranted and divorced from the mischief that Cheshire West was seeking to address.”

He supported that conclusion with a multi-factorial analysis, but it is clear that the burden that would be placed on coroners to hold unnecessary jury inquests, and the administrative burden that would be placed on hospitals were Cheshire West to apply was prominent in his mind.

Gross LJ then conducted what was in essence a factual analysis underpinned by the above conclusion, holding that on the evidence the coroner was entitled to conclude that there had been no state detention. As a matter of common sense, the reality had been that Maria had remained in the ICU for pressing medical reasons, and he considered it fanciful to suggest that the Claimant would have sought to have her removed in those circumstances.

Charles J took a somewhat different approach, finding some magic in the use of the word “compulsory” in the phrase “compulsory detention” contained in the CJA. A “compulsory detention”, he reasoned, is one based on a unilateral and imposed decision of the public authority in question (paragraph 125), and a number of detentions caught by the ambit of Article 5 as it is defined in Cheshire West would not fall into that category, such as (in his view) that which on the facts took place in this case. He found in any event for different reasons that Maria’s treatment did not constitute a deprivation of liberty for the purposes of Article 5.

Analysis

The court was clearly mindful of applying the broad statement of principle in Cheshire West in a mechanistic way. It is suggested that such caution was wise, notwithstanding that it might reasonably be argued that on a natural reading of Cheshire West the acid test therein does encompass intensive care patients. Indeed, as the court noted, it was specifically stated in Cheshire West that the reason or purpose for treatment, compliance with that treatment, lack of objection, family agreement or otherwise, the appropriateness of the treatment and the lack of an alternative safe place are all irrelevant to the question of whether a deprivation of liberty has occurred.

However, as both judges noted, the real aim of Cheshire West was to ensure that, in circumstances where those who suffer from mental disability have their liberty confined for the purpose of care and treatment, such confinement is periodically reviewed with appropriate judicial oversight. By contrast, the reality is that although one’s liberty is certainly confined when one is in intensive care, that is on a common sense analysis because of their physical ill-health. It might be thought an obtuse outcome were that simple fact to oblige medical staff to take reasonably onerous steps to authorise that person remaining in hospital for treatment, and further were it the case that a jury inquest must be held where a death arises in such circumstances.

Hospitals, against a background of detention authorisation applications having increased eight-fold in the six months following Cheshire West, will take some comfort from this judgment. However, open ends remain. Gross LJ acknowledged that there may be some intensive care scenarios where the Cheshire West principle may apply, such as where the method of treatment is disputed by family members (paragraph 81). Further, his reference to a temporal element at paragraph 76 on one view suggests that the longer the period of intensive care, the more likely it is that an individual can be properly regarded as being in state detention.

These issues and others, and also the fact that this case was repeatedly stated to turn on a factual analysis, provide fertile ground for challenge should different factual scenarios surrounding treatment of an individual in intensive care arise in future.