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Published 1 February 2017
Ever since the deprivation of liberty 'acid test' was introduced by the Supreme Court in the Cheshire West case almost 3 years ago, there has been uncertainty about how to apply that test in physical healthcare settings and the extent to which ICU patients who are unable to consent to their treatment (e.g. due to reduced consciousness) are 'deprived of their liberty'.
The position has to some extent now been clarified by the recent case of R (Ferreira) v HM Coroner for Inner London South in which the Court of Appeal has ruled that DoLS applications do not usually need to be made for ICU patients, even if they have a pre-existing mental disorder affecting their capacity.
The Court also ruled that ICU patients are not in 'state detention' for the purposes of deciding whether the Coroner has to hold an inquest with a jury.
Many will see this as a victory for common sense, especially given the major resource implications for Trusts and Local Authority Supervisory Bodies if the Court had decided that DoLS authorisations were needed for all patients in ICU who are unable to consent to being there.
Maria Ferreira - who had Down's Syndrome and learning difficulties - was admitted to an acute hospital with pneumonia and heart problems. Her condition worsened and she was admitted to ICU where she was sedated and intubated. Despite mitts being placed on her hands to reduce the risk of her extubating herself, she removed the tube. This led to her suffering a cardiac arrest and she died a short time later.
The Coroner decided to hold the inquest without a jury. The decision not to have a jury was challenged through the courts by the deceased's sister, who argued that Maria was 'deprived of her liberty' in ICU at the time of her death and was therefore in 'state detention' for the purposes of the rules governing inquests - i.e. the Coroners and Justice Act 2009, which requires a jury for deaths in 'state detention' if the death was violent, unnatural or the cause of death unknown.
Given the overlap between the concepts of 'state detention' under inquest legislation and 'deprivation of liberty' under Article 5 of the European Convention of Human Rights (which allows people of 'unsound mind' to be deprived of their liberty if this is lawfully authorised), the original question of whether the Coroner should sit with a jury grew into a much wider issue about whether DoLS authorisations must be sought for ICU patients who are unable to consent to being there. This hinged on how the Cheshire West two-part 'acid test' (i.e. Is the person under continuous supervision and control? Are they free to leave?) should be applied in ICU settings where sedated and ventilated patients are unable to consent to their treatment and are, for all practical purposes, unable to leave.
The Court of Appeal decided that this patient did not die 'in state detention', meaning that the Coroner had been right to decide not to hear the inquest with a jury. The Court also decided that she was not 'deprived of her liberty' in Article 5 terms, hence no DoLS authorisation would have been necessary to make her treatment in ICU lawful.
On the inquest jury/'state detention' point, the Court found that, whilst there is substantial overlap between the terms 'state detention' and 'deprivation of liberty', they are not the same thing. The Court decided it should take a common sense approach by asking whether anyone properly directing themselves would think that a patient whose treatment and condition makes them physically unable to leave ICU is in 'state detention'. In the Court's view, nobody would ordinarily regard this as such and no inquest jury is therefore required in this scenario.
On the deprivation of liberty/DoLS point, the Court decided that Article 5 is not engaged and the Cheshire West 'acid test' does not apply where the root cause of the person's loss of liberty is their physical condition, not any restrictions imposed by the hospital. The Cheshire West case related to restrictions placed on people in the context of their long-term living arrangements and did not specifically look at acute medical settings - "Cheshire West is a long way from this case on its facts" and is "distinguishable from the situation of a patient in intensive care". In the Court's view, the 'acid test' does not therefore apply to a patient in ICU who is only prevented from leaving by their physical condition.
However, the waters become muddier in relation to medical care outside the doors of ICU. The Court also addressed the position with regard to 'urgent medical care'/'life-saving medical treatment' more generally, stating: "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". To illustrate this, the Court gave the example of a case where authorisation for a deprivation of liberty was needed for a pregnant woman of 'unsound mind' who was objecting to her obstetric care and was to be prevented from leaving the delivery suite and compelled to undergo a caesarean section - i.e. materially different treatment to that for someone of 'sound mind'. The Court indicated that such authorisation would not be needed if any differences in treatment between a person of sound mind and a person of unsound mind were 'immaterial'. It remains unclear precisely how this principle will work in practice.
Inquests into deaths of ICU patients do not have to be heard with a jury because dying in ICU is not a death 'in state detention', even though the patient has not been able to consent to being there.
The issue is soon to be addressed by legislation in any event, when the Policing and Crime Bill 2017 comes into force, because this will specifically exclude DoLS cases from the definition of 'state detention'; meaning that Coroners will not be obliged to hold an inquest into a death solely on the basis that the person was deprived of their liberty under a DoLS authorisation at the time.
Applications for DoLS authorisations do not need to be made for incapacitated patients receiving medical care in ICU, whether or not the patient has any pre-existing mental disorder.
The position is less clear-cut for other acute medical care. The case suggests that no DoLS application will be necessary for urgent or life-saving medical care if the treatment is the same as it would be for someone otherwise of 'sound mind'. Exactly how this principle should be applied in practice will have to be worked out over time, and each case will need to be considered on its facts.
In the context of the DoLS system being under strain due to the sheer volume of applications since Cheshire West, many will welcome the fact that not requiring DoLS authorisations for ICU patients should avoid what the Court described as "substantial expenditure of human and financial resources, for which no semblance of a policy reason has been given".
However, this may not be the last word on the subject: The Ferreira family have applied for permission to appeal this decision to the Supreme Court.
Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising commissioners and providers across the health and social care sector.
We are able to provide responsive, practical advice on all aspects of the law in this area, including:
We can also provide bespoke training in relation to all aspects of the Deprivation of Liberty Safeguards and Court of Protection proceedings, including the implications of the Ferreira case.
If you need advice in relation to the impact of this case in the context of a patient's care or an inquest, please contact Gillian Weatherill on: +44 (0)191 4044045 or firstname.lastname@example.org.
+44 (0)191 404 4045
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