LF, R (on the application of) v HM Senior Coroner for Inner South London & Anor

For the purposes of the Coroners and Justice Act 2009, “state detention” requires confinement imposed by a public authority which overrides the individual’s freedom of choice. The concept has an essentially similar, though not necessarily identical, meaning to deprivation of liberty under article 5 ECHR. The Cheshire West “acid test” must be applied contextually and fact-sensitively. It does not require every incapacitated patient receiving life-saving treatment in an intensive care unit to be treated as detained. A patient who remains in intensive care because physical illness and necessary treatment make departure impossible is not thereby compulsorily detained, absent a decision by the hospital imposing confinement.

Maria Ferreira, who had Down’s syndrome and severe learning disability, was admitted to hospital with serious physical illness. She was later sedated, intubated and treated in intensive care, where she died. The Senior Coroner concluded that she had not been in “state detention” under ss. 7 and 48 of the Coroners and Justice Act 2009, and therefore that a jury was not mandatory.

On judicial review, the claimant argued that the objective test in Surrey County Council v P ([2014] UKSC 19; “Cheshire West”) meant that Maria had been deprived of her liberty. The central issue was whether the Coroner’s conclusion was unlawful or Wednesbury unreasonable.

1. Claim dismissed. The Coroner had not misdirected himself in law or acted irrationally.
2. “State detention” and “compulsorily detained” in ss. 7(2)(a) and 48(2) of the Coroners and Justice Act 2009 bear their natural meaning. They require confinement imposed by a public authority in a manner overriding the relevant person’s freedom of choice. A formal order or authorisation is not essential, but its absence may be relevant evidence.
3. The meaning of state detention is essentially similar, though not necessarily identical, to deprivation of liberty under article 5 ECHR. The question must be determined by close attention to the concrete situation and all the circumstances.
4. Surrey County Council v P ([2014] UKSC 19) established an “acid test” of continuous supervision and control together with lack of freedom to leave in the context of living arrangements for mentally incapacitated persons. A mechanistic extension of that test to all incapacitated patients in intensive care would be unwarranted and would disregard the distinct context and purpose of that decision.
5. Before intensive care, the evidence did not require a finding that hospital staff had refused, or would have refused, to discharge Maria. Afterwards, she remained in intensive care because pressing medical reasons and life-saving treatment made her unable to be elsewhere. There was no evidence of a decision by the hospital to confine her or override her freedom of choice. It was therefore artificial to assess the hospital’s response to a hypothetical request to remove her.
6. The facts did not disclose deprivation of liberty or compulsory detention. The Coroner was consequently not bound by s. 7(2)(a) to summon a jury.

This was a first-instance judicial review of the Senior Coroner’s written decision dated 23 January 2015. The claim was dismissed by the High Court (Administrative Court).