![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (26 January 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/31.html Cite as: [2017] Inquest LR 118, [2017] 3 WLR 382, [2017] WLR(D) 43, [2018] QB 487, [2017] EWCA Civ 31, [2017] Med LR 161, [2017] COPLR 172 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2017] WLR(D) 43]
[Buy ICLR report: [2018] QB 487]
[Buy ICLR report: [2017] 3 WLR 382]
[Help]
ON APPEAL FROM
The Queen's Bench Division, Divisional Court
Lord Justice Gross and Mr Justice Charles
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MCFARLANE
and
MR JUSTICE CRANSTON
____________________
The Queen on the Application of Ferreira |
Appellant |
|
- and - |
||
HM Senior Coroner for Inner South London |
Respondent |
|
King's College Hospital NHS Foundation Trust The Intensive Care Society and the Faculty of Intensive Care Medicine Secretary of State for Health and Secretary of State for Justice |
Interested Party 1st Intervener 2nd Intervener |
____________________
Jonathan Hough QC (instructed by London Borough of Southwark Legal Department) for the Respondent
Kings College Hospital NHS Foundation Trust for the Interested Party did not attend
Alexander Ruck Keene (instructed by Browne Jacobson LLP) for the 1st Intervener
Joanne Clement (instructed by Government Legal Department) for the 2nd Intervener
Hearing dates: 13 to 14 December 2016
____________________
Crown Copyright ©
LADY JUSTICE ARDEN:
SUMMARY
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….
(e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;…
Summary of my conclusion
Plan of this judgment
BACKGROUND
Key events relating to Maria's death
Inquest with a jury: relevant statutory provisions
7 Whether jury required
(1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies.
(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect (a) that the deceased died while in custody or otherwise in state detention, and that either
(i) the death was a violent or unnatural one, or
(ii) the cause of death is unknown . . .
(3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.
48 Interpretation: general
(1) In this Part, unless the context otherwise requires . . . state detention has the meaning given by subsection (2); . . .
(2) A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of theHuman Rights Act
1998.
Coroner's decision on Maria's inquest: no requirement for a jury
It is therefore necessary to consider the status of Ms Ferreira at the time of death. The following features should be noted:
(i) [Feature 1] An authorization for deprivation of liberty under the MCA was not obtained, nor was she admitted under the Mental Health Act 1983. There is no evidence that any public authority took any formal step to put her under detention or take away her liberty.
(ii) [Feature 2] Ms Ferreira was voluntarily admitted to hospital and consented to treatment. It seems likely that she later lacked capacity to consent to at least some of the treatment, but this itself does not mean that she was compulsorily detained at the time of her death.
(iii) [Feature 3] There was an indication from medical staff that, in her own interest, she should stay in hospital for clinical investigations in reply to her sister's request that she should go home. However, as far as I can see, clinical advice was accepted and there was no firm refusal to leave.
(iv) [Feature 4] From the night of 2nd/3rd December she required constant lifesaving treatment and constant observation for medical reasons, being sedated and intubated. There was no question of her leaving the hospital, but that was because of her condition rather than use of coercive powers by the hospital.
(v) [Feature 5] The use of restraint mittens was to prevent her from extubating herself and not to prevent her from leaving hospital. I understand that it was approved by her sister.
[Conclusion]
In all the circumstances, I do not find reason to suspect that Ms Ferreira was in state detention. She had not been expressly prevented or prohibited from leaving a specified place. She had not been formally deprived of her liberty by authorization, nor detained under Mental Health Services.
[words in square brackets added]
TWO IMPORTANT JUDGMENTS IN ISSUE ON THIS APPEAL
1. Supreme Court's decision in Cheshire West
[32] The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to 'normal' home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned.
(a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.
[46] Those rights include the right to physical liberty, which is guaranteed by art 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focused right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
[48] So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test …
P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their 'concrete situation' on which we need to focus?
[49] The answer, as it seems to me, lies in those features which have consistently been regarded as 'key' in the jurisprudence which started with HL v UK (2004) 40 EHRR 761: that the person concerned 'was under continuous supervision and control and was not free to leave' (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only in so far as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
Policy
[57] Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation of liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.
that the fact that "the object is to protect, treat or care in some way for the person taken into confinement" has "no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified …" To the same effect, the Grand Chamber said in Creanga v Romania (2012) 56 EHRR 361, para 93 that "the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the court's assessment of whether there has in fact been a deprivation of liberty", on the basis that the purpose is to be taken "into account only at a later stage of its analysis, when examining the compatibility of the measure with article 5.1 …"
[76] While there is a subjective element in the exercise of ascertaining whether one's liberty has been restricted, this is to be determined primarily on an objective basis. … Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity.
[79] Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age.
2. Judgments of Gross LJ and Charles J in the Divisional Court
…any such extension would be mechanistic, unwarranted and divorced from the mischief Cheshire West was seeking to address.
i) The conclusion would apply to persons who had capacity prior to their illness, and not just those of unsound mind.
ii) It would break new ground as the Strasbourg Court had not considered any case where a person of unsound mind was treated for a physical illness.
iii) The practical consequences would be significant in the terms of an increased number of inquests and extra work imposed on ICUs.
iv) The conclusion appeared to overlook the fact that a person of unsound mind could be treated on a best interests basis without being deprived of their liberty.
127. So, in my view, the use by Parliament of the word compulsorily in the definition of state detention in the CJA 2009 is not redundant or merely reflective of an objectively assessed article 5 detention in which a consent given by or on behalf of the relevant person is irrelevant. This is because the use of that word recognises and reflects the points that: (i) the subjective element is relevant to the question whether the state's obligation under article 5.1 arises and so to the determination of whether a person is deprived of his liberty within the meaning of article 5.1; (ii) on an objective assessment: (a) some detentions within article 5 (and more generally) are compulsory in its primary sense that they are imposed in a way that overrides the relevant persons informed freedom of choice, and (b) some detentions are not because they are based on a consent or substituted consent of the relevant person (and so decisions made by or on behalf of, or to promote the interests of, that person); and (iii) when the subjective element is taken into account some of the objective non-compulsory detentions referred to in sub-paragraph (ii)(b) will give rise to an article 5 detention and others will not.
128. As a matter of the ordinary use of language on the assumption that all of the following are on the correct application of Cheshire West objective detentions within article 5 none of them fit with the primary meaning of the words "compulsory article 5 detention":
(i) deprivation of liberty (detention) that is founded on a need for physical treatment that the patient cannot give consent to, because it is based on the perceived need for the concrete situation on the ground rather than its imposition by another,
(ii) a lawful deprivation of liberty (detention) that is founded on a substituted decision made on behalf of and in the best interests of a person who lacks capacity because it has a consensual rather than an imposed base, even if there is no real choice after the possible choices have been properly considered and decisions have been made on their availability…
SUBMISSIONS OF THE PARTIES AND THE INTERVENERS
Principal submissions of the Appellant
Counsel for the trust and the Secretary of State argued that L. was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L., any possible resistance by him was overcome by sedation, by taking him to hospital, and by close supervision of him in hospital. And, if L. had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L. was free to go is a fairy tale.
Principal submissions of the Coroner
i) Strasbourg jurisprudence holds that "implementation" of the measures which have the effect of taking away a person's liberty is a relevant factor.
ii) A conclusion that Article 5 is violated does not promote the purpose of that Article. Its aim is to prevent a person from being deprived of liberty with proper safeguards before the person is deprived of their liberty. It would not occur to any clinician to think that there was a loss of liberty in this situation.
iii) As Gross LJ held, a ruling in the appellant's favour would have extraordinary consequences. If the person were not of unsound mind, the exception in Article 5(1)(e) would not apply and the MCA would not apply.
iv) As the evidence of Dr Bryden and also the post-Cheshire West guidance of the ICS shows, the hypothetical test requires clinicians to ask questions which could be detrimental to the patient-doctor relationship. If clinicians consider there will be risk of a deprivation of liberty, they can seek a precautionary order.
Submissions of the Secretaries of State for Justice and Health (interveners)
i) The ratio is directed at long-term social care settings.
ii) The policy justification put forward by Lady Hale does not apply here. There is simply no need for independent reviews, and it is unnecessary to approach deprivation of liberty through Article 5 (1) (e).
iii) The appellant's approach results in discrimination against those without mental disabilities. In lifesaving care, the approach should be the same.
iv) There are serious practical resource consequences. The Secretaries of State consider that, after Cheshire West, there was a ten-fold increase against forecasts in applications for deprivation of liberty safeguards. Ms Clement properly accepts, however, that if Article 5 inevitably leads to the conclusion that a person is deprived of her liberty in the circumstances of this case, then the wider practical and administrative implications are irrelevant.
Submissions of the ICS/FICM (interveners)
MY ANALYSIS OF THE ISSUES
Essential issue on this appeal
Overlap between "state detention" and deprivation of liberty
Identifying Strasbourg case law applicable to urgent medical care
57. As mentioned above, art 5(1) is not concerned with mere restrictions on liberty of movement, which are governed by art 2 of protocol no 4. In order to determine whether someone has been 'deprived of his liberty' within the meaning of art 5(1), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Engel v Netherlands [1976] EHCR 5100/71 (8 June 1976) at para 59; Guzzardi v Italy [1980] ECHR 7367/76 at paras 92–93; Storck v Germany [2005] ECHR 61603/00 at para 71; and also, more recently, Medvedyev v France (2010) 51 EHRR 899 at para 73).
58. As Lord Walker pointed out (see para 37, above), the purpose behind the measure in question is not mentioned in the above judgments as a factor to be taken into account when deciding whether there has been a deprivation of liberty. Indeed, it is clear from the court's case law that an underlying public interest motive, for example to protect the community against a perceived threat emanating from an individual, has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of art 5(1) (see, among many examples, A v UK (2009) 26 BHRC 1 at para 166, 19 February 2009; Enhorn v Sweden (2005) 19 BHRC 222 at para 33; M v Germany (2009) 28 BHRC 521). The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty (see Storck v Germany [2005] ECHR 61603/00 at paras 74–78, and the cases cited therein and, most recently, Stanev v Bulgaria [2012] ECHR 36760/06 at para 117; see also, as regards validity of consent, Amuur v France [1996] ECHR 19776/92 at para 48).
59. However, the court is of the view that the requirement to take account of the 'type' and 'manner of implementation' of the measure in question (see Engel v Netherlands [1976] EHCR 5100/71 (8 June 1976) at para 59 and Guzzardi v Italy [1980] ECHR 7367/76 at para 92) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel v Netherlands [1976] EHCR 5100/71 (8 June 1976) at para 59; Amuur v France [1996] ECHR 19776/92 at para 43). Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. As the judges in the Court of Appeal and House of Lords observed, members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match (see paras 35 and 37, above). The court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as 'deprivations of liberty' within the meaning of art 5(1).
Life-saving medical treatment: in general no deprivation of liberty
Lack of policy need to apply the "acid test" to urgent medical care
Article 5(1)(e) concerned with treatment of mental impairment
Hospital did not prevent Maria from leaving
Maria's treatment materially the same as for persons of sound mind
Coroner's decision: no error
Alternative basis of decision: interpretation of "state detention"
Overall conclusion
Lord Justice McFarlane
Mr Justice Cranston
I have not seen a situation in my clinical practice where a family has insisted on taking a patient where that would require them to be disconnected from lifesaving/preserving treatment, but there is no formal guidance or consensus on how to act in those circumstances. … If the outcome would be the patient's death, ethically we would not be able to stand there and watch and would seek urgent advice from the hospital's legal team…
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.