Deprivation of Liberty Judgement
Ferreira, R v HM Senior Coroner for Inner South London appeal:
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 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.”
Lady Justice 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.
State detention - 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.
The law - 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.
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.”
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