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Text:ICLR R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] MHLO 2

Court of Appeal

Regina (Ferreira) v Inner South London Senior Coroner (Intensive Care Society and the Faculty of Intensive Care Medicine and others intervening)

[2017] EWCA Civ 31!

Arden , McFarlane LJJ, Cranston J

Coroner — Inquest — Jury — Mentally incapacitated adult dying in hospital’s intensive care unit — Whether coroner obliged to summon jury for inquest into death — Whether treatment of patient in intensive care involving state detention — Whether deprivation of liberty in intensive care setting — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5.1 — Coroners and Justice Act 2009 (c 25), s 7(2)

The deceased, who had Down’s syndrome, learning difficulties and was confined to a wheelchair, was taken to hospital with breathing difficulties. Her condition worsened and she was admitted to an intensive care unit where she was intubated and sedated. Although a mitt had been placed on one of her hands to prevent removal of the tube, she was still able to remove it which led to a cardiac arrest and her death. It was common ground that the deceased was of unsound mind for the purposes of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedom. The coroner decided that there had to be an inquest into the deceased’s death but that he had no reason to suspect that she had died “in state detention”, within the meaning of section 7(2) of the Coroners and Justice Act 2009, defined in section 48 as being “compulsorily detained” by a public authority, and therefore he would hold the inquest without a jury. The deceased’s sister sought judicial review of the coroner’s decision not to hold the inquest with a jury, on the basis that as a result of her hospital treatment the deceased had at the date of her death been deprived of her liberty for the purposes of article 5 of the Convention and therefore was in “state detention” when she died. The Divisional Court of the Queen’s Bench Division dismissed the claim, holding that there was no reviewable error in the coroner’s decision.

On the claimant’s appeal—

Held, appeal dismissed. Any deprivation of liberty resulting from the administration of life-saving medical treatment to a person fell outside article 5.1 of the Convention so long as the acute condition of the patient was not the result of action which the state wrongly chose to inflict on him and the administration of the treatment should not in general include treatment that should not properly be given to a person of sound mind in his condition according to the medical evidence; further, article 5.1(e) was not concerned with the treatment of the physical illness of a person of unsound mind. Applying the case law of the European Court of Human Rights to the present case, the deceased had not been deprived of her liberty at the date of her death because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment. While she was physically restricted in her movements by her physical infirmities and by the treatment she received, the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital. Accordingly there was no basis on which it could be said that there was a deprivation of liberty in the present case and therefore no reason to suspect “state detention” for the purposes of section 48(2) of the Coroners and Justice Act 2009. Accordingly, the coroner’s decision was correct (paras 10, 76, 81, 83, 88, 89, 95, 103, 113–116).

Austin v United Kingdom (2012) 55 EHRR 359, GC followed.

Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] AC 896, SC(E) distinguished.

Decision of the Divisional Court of the Queen’s Bench Division [2015] EWHC 2990; [2016] 1 WLR 2385 affirmed.

Appearances:

Jenni Richards QC and Victoria Butler-Cole (instructed by Bindmans LLP) for the claimant.

Jonathan Hough QC (instructed by Legal Services, Southwark London Borough Council) for the coroner.

Alexander Ruck-Keene (instructed by Browne Jacobson LLP) for the Intensive Care Society and Faculty of Intensive Care Medicine, intervening.

Joanne Clement (instructed by Government Legal Department) for the Secretary of State for Health and the Secretary of State for Justice, intervening.

Reported by: Nicola Berridge, Solicitor