Landmark deprivation of liberty ruling

A woman with a learning disability who died while in intensive care was not in “state detention”, the Court of Appeal has ruled, upholding a coroner’s decision not to proceed with a full inquest into her death.

The court so held in Ferreira v Coroner of Inner South London [2017] EWCA Civ 31, in a landmark decision on deprivation of liberty in the context of acute medical treatment. The case is the first detailed examination by the Court of Appeal of the Supreme Court’s decision in P v Cheshire West [2014] UKSC 19, which expanded the definition of deprivation of liberty.

Maria Ferreira, who had Down’s Syndrome and could not make decisions about her own care, died at King’s College Hospital, London, in December 2013. A legal dispute arose over whether the inquest into her death should be held with a jury.

The Coroners and Justice Act 2009 requires that a death while in “state detention” which is either unnatural, violent or the cause of death must be subject to an inquest with a jury. The senior coroner decided that Ms Ferreira was not deprived of her liberty and therefore not in “state detention”.

Ben Troke, partner at Browne Jacobson, who advised the intervening parties, the Intensive Care Society and the Faculty of Intensive Care Medicine, said: “This is an important decision for all NHS and independent providers that offer in-patient physical healthcare because it seems to establish that any treatment of physical health will not of itself constitute a deprivation of liberty, where it is the same treatment that would be given to any patient, regardless of their capacity.”

Troke said heathcare providers, “and probably the local authorities currently dealing with the colossal backlog of Deprivation of Liberty Safeguards referrals” would “find this judgment grounded in common sense and hugely welcome.”

However, Saimo Chahal, partner at Bindmans, who acted for the sister of Maria Ferreira, said the decision had led to “less clarity rather than more. There is now so much confusion in this area…that it is vital the Supreme Court now revisit this important issue”.