Departing from Cheshire West: Court of Appeal delivers landmark decision on “state detention” with practical ramifications

Pending further appeal to the Supreme Court, this is an important and welcome decision, but it is likely to cause turbulence.

Background

The deceased, who suffered from Down’s syndrome and learning difficulties, died following admission to the ICU of King’s College Hospital for pneumonia and heart problems. This case explored whether the deceased’s admission constituted “state detention” necessitating a full jury inquest.

HM Senior Coroner Mr Andrew Harris concluded that the facts did not warrant a full jury inquest. The basis of his reasoning is as follows:

• The deceased was not detained, her admission was voluntary. No Mental Capacity Act 2005 (MCA 2005) authorisation for deprivation of liberty was obtained nor was the deceased admitted under Mental Health Act 1983.
• The deceased required constant life-saving treatment and observation for medical reasons which were in her best interests. It was her physical condition that caused the deceased to be intubated and sedated rather than a restriction imposed by the hospital.
• Whilst restraint mittens were used, they were to prevent the deceased from extubating herself rather than preventing her to leave.
• Permission to judicially review this decision was refused at first instance.

Decision

Lady Justice Arden dismissed the appeal and held as follows:

• A person whose liberty has been restricted may be found not to have been deprived of her liberty even though none of the exceptions of Article 5(1) of the Convention apply. Regard may be given to the purpose of the interference.
• Any deprivation of liberty resulting from the administration of life-saving treatment to a person constitutes “commonly occurring restrictions on movement” for the purpose of Article 5 of the Convention.
• If a person of unsound mind is treated for a physical illness, which is not a consequence of her mental impairment, and a person of sound mind would have been administered the same treatment, there is no deprivation of liberty. Cheshire West does not apply.
• Parliament could not have intended that treatment in ICU comes under “state detention” for the purposes of Article 5. There is no policy reason to cause significant dilution to this service by requiring authorisation of the deprivation of liberty in what would be a normal ICU case.

Implications

Following Cheshire West and Chester Council v P [2014], s.7 of the Coroners and Justice Act 2009 (CJA 2009) has been interpreted to mean that where a patient of unsound mind dies during hospitalisation, they fall within the definition of “state detention” necessitating a full jury inquest. However, the decision in Ferreira clarifies that it is not sufficient that a patient who lacked capacity died whilst receiving treatment. Regard must now be given to the circumstances of hospitalisation.

The court decided that where a patient of unsound mind is treated for a physical illness, where the root cause of the admission was pressing medical treatment, that admission in itself will not constitute a deprivation of liberty if that same treatment would also be administered to a patient with capacity. Furthermore, going forward, treatment in ICU cannot appropriately be considered a deprivation of liberty.

Pending further appeal to the Supreme Court, this is an important and welcome decision for the need for a full jury inquest.

Undoubtedly this decision is likely to cause turbulence, particularly with regards to its interpretation of the Chief Coroner’s Guidance on Deprivation of Liberty Safeguards and the view that any death where there is “state detention” should be subject to a coronial investigation.

Hospitals will still need to review each patient on a case-by-case basis.