Newsflash: Court of Appeal determines that Cheshire West does not apply in acute care settings

R (LF) v Coroner of Inner South London [2017] EWCA Civ 31

Key practical points

• In the acute hospital setting (especially emergency and intensive care) patients undergoing medical treatment for physical illness are not deprived of their liberty.
• The judgment is complicated and its full implications need to be worked out.  It does not make dealing with “deprivation of liberty” any easier.
• An attempt is being made to appeal to the Supreme Court, which we hope will be accepted by that Court as further clarification is now needed.
• We recommend:
  • Hospitals providing “physical health” care should continue to submit Deprivation of Liberty Safeguard (DOLS) applications as they do now but may find Supervisory Bodies indicating some patients are not deprived of their liberty and can adjust practices accordingly
  • Care packages in the community, care homes and hospitals providing “mental health” care should continue to seek authorisation for deprivations of liberty based on the ‘Acid Test’ established in Cheshire West

Factual background

MF, a young woman with a severe learning disability, died in an intensive care unit (ICU).

The Coroner decided that he was not required to hear the inquest in the presence of a jury as MF was not in ‘state detention’ for the purposes of s7 of the Coroner’s and Justice Act 2009 (CJA) at the time of her death.  MF’s family judicially reviewed the Coroner’s decision not to sit with a jury arguing that MF was in state detention as she was deprived of her liberty at the time of her death on ICU.

The Court at first instance upheld the Coroner’s decision agreeing that treatment for physical health in the intensive care setting does not constitute a deprivation of liberty. MF’s family subsequently appealed the decision.

The Court of Appeal has agreed with the first instance Court that MF was not in state detention for the purposes of s7 CJA as she was not deprived of her liberty.  The Coroner had therefore been correct to determine that he was not required to the inquest in the presence of a jury.

Judgment

Lady Justice Arden concluded the following in support of her view that Cheshire West may not apply in acute health care settings:

• Lifesaving treatment does not necessarily equate to a deprivation of liberty if the individual’s illness results in a ‘commonly occurring restriction’ regardless of whether or not they are of sound or unsound mind.
• The ‘acid test’ outlined in Cheshire West does not apply to the ICU setting. There is no policy reason for an individual of unsound mind suffering with a physical illness to benefit from DOLS when they are given the same treatment as an individual of sound mind.
• Article 5 does not apply where an individual of unsound mind is receiving the materially the same treatment as someone of sound mind.
• MF would likely have been free to leave the ICU setting suggesting that the matter falls outside of the acid test outlined in Cheshire West.