Court of Appeal delivers landmark ruling in state detention inquest case
A woman with a learning disability who died whilst in the intensive care unit of a hospital was not in ‘state detention’, the Court of Appeal has ruled.
In Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 the court (Lady Justice Arden, Lord Justice McFarlane and Mr Justice Cranston) upheld a coroner’s decision not to proceed with a full jury inquest into Maria Ferreira’s death.
Ms Ferreira, who suffered from Down’s syndrome had been admitted to the Intensive Care Unit at King’s College Hospital, where she died in December 2013. An inquest into her death has yet to be held amid a dispute about whether it should be held with or without a jury.
Under the Coroners and Justice Act 2009 a death while in ‘state detention’ which is either unnatural, violent or the cause of death is unknown must be subject to an inquest with a jury.
The senior coroner concluded that Ms Ferreira was not deprived of her liberty (there was no Deprivation of Liberty Safeguards authorisation in place) and therefore not in ‘state detention’ at the time of her death and so there was no need for an inquest with a jury.
Luisa Ferreira, Maria’s sister, challenged that decision unsuccessfully in the Divisional Court and now the Court of Appeal. Her lawyers, Bindmans, have said they will apply to the Supreme Court for permission to appeal.
Law firm Browne Jacobson said the Court of Appeal’s judgment on deprivation of liberty in the context of acute medical treatment would be welcomed by providers of physical healthcare.
Partner Ben Troke, a partner at Browne Jacobson, who advised the Intensive Care Society and Faculty of Intensive Care Medicine as intervening parties, said: “This is an important decision for all NHS and independent providers that offer in patient physical healthcare because it seems to establish that any treatment of physical health will not in itself constitute a deprivation of liberty, where it is the same treatment that would be given to any patient, regardless of their capacity.
“For now, pending any further appeal to the Supreme Court, healthcare providers, and probably the local authorities currently dealing with the colossal backlog of Deprivation of Liberty Safeguards referrals, will be delighted and find this judgment grounded in common sense and hugely welcome.”
Saimo Chahal, Bindmans partner and Luisa Ferreira's solicitor, said: “Regrettably the decision of the court of appeal has led to less clarity rather than more. There is now so much confusion in this area about the meaning of ‘deprivation of liberty’ and the application of the test in the case of Cheshire West, combined with conflicting guidance that it is vital the Supreme Court now re-visit this important issue - which affects thousands of vulnerable mentally incompetent patients with knock on effects for their carers, health professionals, staff in community care facilities as well as those advising on and applying the law.”
