Following the landmark Court of Appeal judgement in Ferreira v HM Senior Coroner for Inner South London  EWCA Civ 31 new guidance has been issued by the Faculty of Intensive Care Medicine /Intensive Care Society to practitioners about assessing capacity and making best interest decisions when working with people who require medical treatment in intensive care.
Please click here for the guidance.
The case of Ferreira relates to an individual with Down’s syndrome and learning disabilities who was being treated in hospital for pneumonia and heart problems. The judgement indicated that she had lacked capacity to consent to treatment; whilst waiting in the hospital to undergo checks before she could be discharged, her condition deteriorated and she was admitted to ICU where she was intubated and sedated. As a result of removing the tube she went into cardiac arrest and passed away shortly thereafter.
A coroner is obliged to hold an inquest if a person dies in state detention. The coroner has a power to use a jury in cases where the coroner considers there is sufficient reason to do so. The case came to court following a challenge by the deceased’s sister to the coroner’s decision not to hold an inquest with a jury.
In the Court of Appeal, the judge held that the coroner’s decision was correct. Lord Justice Arden findings are of particular interest because they deal with the applicability of Deprivation of Liberty Safeguards (DoLS) in intensive care settings. He held that:-
The deceased was not deprived of her liberty 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. (Paragraph10 of the judgement)
If the administration of life saving treatment is rendered unavoidable as a result of circumstances beyond the control of the authorities, is necessary to avert a real risk of serious injury or damage, and is kept to the minimum required for that purpose, then a detention in these circumstances is not a deprivation of liberty within the scope of Article 5 of the European Convention of Human Rights, the purpose of which is to ensures that no one is deprived of their liberty without proper safeguards. (Paragraph 89 of the judgement)
A death in intensive care is not a death in state detention for the purposes of coronial rules (unless there is some special circumstance).” (Paragraph 12 of the judgement)
No detention amounting to a deprivation of liberty may be permitted without authorisation under the DoLS statutory scheme set out in Schedule A1 of the Mental Capacity Act 20015.
As a result of this judgement, there is likely to be no deprivation of liberty where a patient is unable to leave the hospital as a result of their medical condition, or the treatment of it, rather than any restrictions imposed by the hospital staff. Therefore where treatment is being administered in these circumstances, the requirement for authorisation under DoLS will not be triggered.
However, an application for leave to appeal this decision has been made.