Two years after a Supreme Court landmark ruling led to a surge in applications by local authorities for deprivations of liberty under the Mental Capacity Act, the Court of Appeal is to rule on whether a patient in intensive care can be considered to be in state detention. 

Luisa Ferreira is challenging a High Court decision concerning her sister Maria, who died aged 45 in King's College Hospital London, in December 2013. The court ruled that Maria, who had Down's syndrome and learning difficulties, was not in state detention and thus the coroner was not obliged to hold an inquest with a jury.

Although Lord Justice Gross and Mr Justice Charles dismissed Ferreira’s challenge to the coroner’s decision, their reasons differed.

On day one of the appeal yesterday, 39 Essex Chambers’ Jenni Richards QC (instructed by London firm Bindmans), for Ferreira, told Lady Justice Arden, Lord Justice McFarlane and Mr Justice Cranston that the issue was whether the coroner was entitled to conclude that there was no reason to suspect that Maria was in ‘state detention’ at the time of her death.

The court heard that, in November 2013, Maria contracted a chest infection and was admitted to hospital. On 3 December she was transferred from the high dependency unit to the critical care unit, where her hands were encased in gloves to stop her pulling out tubes. 

Luisa Ferreira, in her witness statement, said that on 6 December Maria was wearing only one glove and trying to grab a tube. On 7 December, while supposedly under one-to-one observation, wearing one mitten, Maria dislodged her ventilation tube. Attempts to resuscitate her failed.

An inquest was opened into Maria’s death in December 2013. In January 2015 the coroner determined that Maria did not die ‘in state detention’ within the meaning of the Coroners and Justice Act 2009. There was, therefore, no obligation to conduct the inquest with a jury.

Richards told the appeal that Maria was unable to verbalise her needs because of her learning disabilities. She was a patient who was agitated and anxious, and unable to consent to the medical interventions being administered to her – relevant factors to the question of deprivation of liberty. There was also evidence in Maria’s medical records that she would not tolerate a nebuliser and that she was non-compliant in attempts to cannulate her.

Richards said: ‘[The] relevant question for the coroner to ask in the circumstances of the present case is whether there was reason to suspect Maria was deprived of her liberty, applying the Cheshire West acid test, leaving out of the equation all of the factors which the Supreme Court identified as being irrelevant.’

The key questions in the ‘acid test’ are: is the person subject to continuous supervision and control? Is the person free to leave?

Richards said: ‘Applying the two components of the Cheshire West test, there plainly was reason to suspect Maria was in state detention, deprived of her liberty, through the application of the twin pillars of the “acid test”.’ 

Jonathan Hough QC of 4 New Square is due to make his submissions today for Her Majesty’s senior coroner for Inner London (south). The Intensive Care Society and Faculty of Intensive Care Medicine, and the Department of Health and Ministry of Justice, are joint interveners in the case.

The appellate court’s decision will determine whether or not the inquest is held with a jury.

Meanwhile, the Law Commission is due to publish its final report on deprivation of liberty safeguards, with recommendations and a draft bill, in March.