A London firm is to seek clarity from the Supreme Court over the meaning of ‘deprivation of liberty’ after the Court of Appeal ruled that a patient in intensive care was not considered to be in state detention. 

Luisa Ferreira had challenged a High Court decision concerning her sister Maria, who died age 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.

However in judgment today in Ferreira v HM Senior Coroner for Inner South London, the Court of Appeal ruled that the coroner’s decision was correct in law.

Lady Justice Arden said Maria was not deprived of her liberty at the date of her death ‘because she was being treated for a physical illness and her treatment was that which it appeared to all intents would have been administered to a person who did not have her mental impairment’.

Arden said the ‘root cause’ of any loss of liberty was Maria’s physical condition, ‘not any restrictions imposed by the hospital’. Lord Justice McFarlane and Mr Justice Cranston agreed.

Although, in the High Court, Lord Justice Gross and Mr Justice Charles dismissed Ferreira’s challenge to the coroner’s decision, their reasons differed. Arden, in her Court of Appeal judgment, said the ‘watershed’ issue that divided them was the correct approach to the meaning of ‘state detention’.

Arden said her reasoning was closer to that of Gross LJ rather than that of Charles J, ‘but there are significant differences too between my approach and that of Gross LJ’.

In the two-day appeal hearing last month, 39 Essex Chambers’ Jenni Richards QC (instructed by London firm Bindmans) for Ferreira, told the court that the relevant issue for the coroner to ask in the circumstances of the case was ‘whether there was reason to suspect Maria was deprived of her liberty, applying the Cheshire West  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?

However, Arden said Cheshire West was a ‘long way from this case on its facts and that, in my judgment, indicates that it is distinguishable from the situation of a patient in intensive care’.

Bindmans’ solicitor Saimo Chahal QC, said in a statement: ‘Regrettably the decision of the Court of Appeal has led to less clarity rather than more. 

‘There is now so much confusion in this area about the meaning of “deprivation of liberty” and the application of the test in the case of Cheshire West, combined with conflicting guidance, that it is vital the Supreme Court now re-visit this important issue, which affects thousands of vulnerable mentally incompetent patients with knock-on effects for their carers, health professionals, staff in community care facilities as well as those advising on and applying the law.’

Law firm Browne Jacobson advised the Intensive Care Society and Faculty of Intensive Care Medicine, which were intervening parties in the case.

Browne Jacobson partner Ben Troke said healthcare providers, and possibly local authorities currently dealing with a 'colossal backlog' of deprivation of liberty safeguards referrals, would find the Court of Appeal's judgment 'hugely welcome'.

Bindmans has applied to the Court of Appeal to take the case to the Supreme Court. Should the appellate court refuse permission, the firm will apply directly to the Supreme Court.