On Thursday 26 January 2017, the Court of Appeal handed down judgment in R (Ferreira) v HM Senior Coroner for Inner North London [2017] EWCA Civ 31. This is an important case on deprivation of liberty and Article 5 of the Convention, as well as for the duties of Coroners to hold an inquest with a jury.
The Court of Appeal dismissed the appeal, and upheld the Coroner’s conclusion that Ms Ferreira was not deprived of her liberty in a hospital intensive care unit at the time of her death.
(1) The Court concluded that there was a substantial overlap between the concept of “state detention” in the Coroners and Justice Act 2009 and that of “deprivation of liberty” under Article 5 of the ECHR.
(2) The Court held that Cheshire West could be distinguished, and it did not apply to an individual in this context. Any deprivation of liberty resulting from the administration of life-saving treatment falls outside of Article 5(1), so long as the acute condition of the patient is not the result of any action which the state wrongly chose to inflict on him, and so long as the treatment would properly be given to a person of sound mind in the same physical condition. The Court gave guidance on the application of Article 5, stating that Article 5(1)(e) is directed to the treatment of persons of unsound mind because of their mental impairment, and that It will not amount to a deprivation of liberty where a person of unsound mind is receiving materially the same medical treatment for a physical illness as a person of sound mind.
(3) Alternatively, the Court of Appeal held that if it had been required to apply the Cheshire West acid test, the second part of that test would not be met, in that Ms Ferrerira had been free to leave. In the case of a patient in intensive care, the true cause of her not being free to leave is her underlying illness, not any state action.
Joanne Clement appeared for the Secretary of State for Health.
The judgment is available here.
