David Sandiford considers the recent decision in R (on the application of LF) v HM Senior Coroner for Inner South London & Kings College Hospital NHS Foundation Trust [2015] EWHC 2990 (Admin) 

This very recent decision considers the issue of whether a coroner had been correct in finding that there was no reason to suspect that a patient who had died while on a ventilator in a hospital intensive care unit had died an unnatural death while “in state detention” within the meaning of the Coroners and Justice Act 2009 s.7 (2) (a) and s.48 (2).  

The coroner determined that the deceased had not been expressly prevented from leaving the hospital and had not been formally deprived of her liberty by authorisation.  Accordingly he concluded that it was unnecessary to empanel a jury.  The sister of the deceased sought judicial review of that decision arguing that it was Wednesbury unreasonable or involved a misdirection of law, relying on Cheshire West and Chester Council v P [2014] UKSC 19, [2014] AC896.  It was argued that the coroner should have found that the deceased had been deprived of her liberty within the meaning of article 5 and was therefore in state detention for the purposes of  s.7 (2) (a) of the Act, necessitating a jury at the inquest.  

The application was refused.

In refusing the application the court considered that the phrases “in state detention” and “compulsorily detained” had to be given their natural and ordinary meaning.  If that was done they were properly to be construed as referring to a confinement imposed by a public authority overriding an individual’s freedom of choice.  The decision in Cheshire West and the case law flowing from article 5 were aimed at living arrangements made for those suffering from mental incapacity & the need for periodic independent scrutiny of such arrangements.  The article 5 jurisprudence did not address treatment for physical disorders unconnected to mental disorder.  The key to determining the proper scope of s.7 (2) (a) was to focus on the concrete situation that confronted the court.  

The notion that all intensive care patients were being deprived on their liberty if they lacked the capacity to consent to treatment stretched and extended the principles established in Cheshire West too far.  The coroner had been entitled to find that the deceased was not being compulsorily detained in the intensive care unit but was there to receive life saving treatment.  The court also considered that it was fanciful to suppose that the sister of the deceased would have sought to remove her whilst she was undergoing such treatment.  

The use of the word “compulsorily” in the definition of “state detention” was considered significant.  In limiting detentions to those imposed so as to override the individuals freedom of consent gave effect to that word in a way which promoted the underlying intention of the Act.  In the particular application before it, the court concluded that it would be wholly artificial to say that the deceased had been compulsorily detained at the time of her death as her freedom of choice had not been overridden and nothing had been unilaterally imposed on her.

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