The Court of Appeal has held that “in general” there can be no deprivation of liberty under human rights law in cases where a person is receiving life-saving medical treatment.
The landmark ruling was made in the case of a woman with Down’s syndrome and learning disabilities, Maria Ferreira (known as Maria in the judgment), who died in intensive care at Kings College Hospital in 2013.
Giving judgment, Lady Justice Arden said Maria, who was admitted to hospital with breathing difficulties, was not deprived of her liberty under Article 5 of the European Convention on Human Rights (ECHR) because she was being treated for a physical illness and her treatment would have been given to any person who did not have her mental impairment.
She was physically restricted by her illness and the treatment she received (which included sedation), but “the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital.”
Arden also concluded that the second part of the “acid test” for deprivation of liberty, namely whether Maria was free to leave, would not have been satisfied. If she was able to leave her bed, the hospital would not have stopped her.
The judgment has been welcomed by some as a “common sense” decision that lessens the burden on local authorities of authorising deprivations of liberty, but criticised by others as adding confusion to the law in this area.
The case was an appeal by Maria’s sister, Luisa, against the High Court’s 2015 rejection of a judicial review challenge she brought against a coroner’s decision to hold an inquest into Maria’s death without a jury. Under the Coroners and Justice Act 2009, an inquest with a jury must be held if a person dies in “state detention”, and the Inner London South coroner concluded that she was not detained.
Luisa argued that, as a result of Maria’s hospital treatment, she was deprived of her liberty and was therefore in state detention when she died.
A person is considered deprived of their liberty under Article 5 if three conditions are met:
- The person is confined to a particular place for a non-negligible period of time (the objective element).
- They have not consented to this (the subjective element).
- Their confinement was the responsibility of the state (the state element).
Under Article 5, a person “of unsound mind” – a category which would include Maria – may be deprived of their liberty with lawful authorisation, for example through the Deprivation of Liberty Safeguards or a Court of Protection order. As Maria was unable to consent and was in state care, only the objective element was in dispute.
Under the “acid test” set out in the Cheshire West case, the objective element is satisfied if the person is under continuous supervision and control and not free to leave their place of confinement.
‘No need for safeguards’
Lady Justice Arden dismissed the appeal and concluded that Maria was not deprived of her liberty because:
- The European Court of Human Rights had excepted “commonly occurring restrictions on movement” from being considered a deprivation of liberty under Article 5 and administering life-saving treatment generally fell within this category, so long as the person’s condition was not the result of state action and they were not receiving treatment that could not have been given to a person of “sound mind” in the same condition.
- Maria would have been free to leave the hospital had she been physically able to do so, meaning the acid test was not satisfied.
The judge said: “There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.”
However, Arden also held that there may be some circumstances where a deprivation of liberty arises and needs to be authorised, giving the example of NHS Trust I v. G . In this case, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment, such as a Caesarean section.
“If these steps had been taken, the treatment would be materially different from that given to a person of sound mind,” Arden noted.
Ben Troke, a partner at Browne Jacobson, who acted for one of the intervening parties in the case, the Intensive Care Society, said the judgement was important for healthcare providers.
He said: “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 judgement grounded in common sense and hugely welcome.”
However, Luisa Ferreira’s solicitor, Saimo Chahal QC of Bindmans, 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.”