Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London

Life-saving treatment does not ordinarily deprive a patient of liberty under article 5 where any restriction is unavoidable because of the patient’s physical condition, necessary to avert serious injury or damage, and kept to the minimum required. Treatment must be given in good faith and be materially the same as treatment appropriate for a person of sound mind with the same physical illness.

The acid test governing state-arranged living arrangements for persons of unsound mind does not automatically apply to urgent or intensive care. Ordinarily, an intensive-care patient’s inability to leave results from illness rather than state action. Such treatment is therefore not, without special circumstances, “state detention” requiring a jury inquest under section 7(2) of the Coroners and Justice Act 2009.

Maria Ferreira, who had Down’s syndrome and learning difficulties, died after receiving life-saving treatment in an intensive care unit. She had been intubated, sedated and continuously observed. No deprivation of liberty authorisation had been obtained.

The Senior Coroner decided that there was no reason to suspect that she had died in “state detention” and that section 7(2) of the Coroners and Justice Act 2009 did not require a jury inquest. The Divisional Court dismissed the resulting judicial review claim in [2015] EWHC 2990, although its two judges differed in their reasoning.

The appellant contended that the continuous supervision and control and lack of freedom to leave satisfied the acid test in Cheshire West. The central issue was whether ordinary intensive-care treatment of a person lacking capacity constituted a deprivation of liberty and hence state detention.

1. Appeal dismissed. The coroner correctly concluded that there was no reason to suspect that Maria Ferreira had died in state detention. A jury inquest was therefore not mandatory under section 7(2) of the Coroners and Justice Act 2009.

2. Article 5 distinguishes a deprivation of liberty from a restriction on movement by reference to degree and intensity, assessed in the person’s concrete situation. Commonly occurring restrictions fall outside article 5 where they are unavoidable because of circumstances beyond the authorities’ control, necessary to avert a real risk of serious injury or damage, and kept to the minimum required.

3. Those principles apply to the administration of life-saving treatment. Ordinarily, no deprivation of liberty occurs where the patient’s acute condition was not wrongfully caused by the state and the treatment is given in good faith and is materially the same as that which could properly be given to a person of sound mind with the same physical condition. Materially different treatment imposed because of mental impairment may require authorisation.

4. Cheshire West concerned state-arranged living arrangements for persons of unsound mind and was distinguishable. It gave no guidance governing urgent or intensive care. Article 5(1)(e) addresses detention connected with mental impairment, rather than materially equivalent treatment of a physical illness.

5. Even if the Cheshire West acid test applied, Maria was under continuous supervision and control but was not shown to lack freedom to leave because of state action. Her physical illness was the true cause of her inability to leave. There was no evidence that the hospital would have prevented a lawful transfer or complied unwillingly with a court order.

6. The absence of a deprivation of liberty authorisation does not prevent circumstances from amounting to a deprivation of liberty or state detention. The contrary Chief Coroner’s guidance was legally incorrect. Nevertheless, the coroner’s errors concerning Maria’s consent and the absence of a firm request to leave were immaterial.

7. Alternatively, “state detention” substantially overlaps with, but is not identical to, deprivation of liberty under article 5. Section 48(2) of the Coroners and Justice Act 2009 does not expressly incorporate Strasbourg jurisprudence. In the absence of clear and constant Strasbourg authority, Parliament could not be taken to have intended ordinary intensive-care treatment to constitute state detention.

McFarlane LJ and Cranston J agreed with Arden LJ.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal in [2017] EWCA Civ 31 and upheld the conclusion that the coroner’s decision disclosed no reviewable error.
2. High Court, Divisional Court: Gross LJ and Charles J dismissed the judicial review claim in [2015] EWHC 2990. Both held that the coroner’s decision disclosed no reviewable error, although they differed on the meaning of compulsory state detention.
3. Senior Coroner: The coroner decided that an inquest was required but that there was no reason to suspect death in state detention and therefore no obligation to summon a jury.