Hospital death Down’s syndrome sufferer not in ‘state detention’, judges rule

A middle-aged Down’s syndrome sufferer who died in a hospital intensive care unit was not in “state detention”, senior judges have ruled.

Lawyers say the decision by three judges following a hearing in the Court of Appeal in London will have implications for care providers.

Maria Ferreira died at King’s College Hospital in London, nearly four years ago.

Her sister, Luisa Ferreira, had argued that she was being deprived of her human right to liberty and was therefore in “state detention”.

Coroners must hold inquests with juries when investigating deaths in state detention – and litigation had started after a coroner decided not to stage a jury inquest.

Two judges had decided that there was no need to hold a jury inquest after analysing the case in the High Court – and three appeal judges have today dismissed an appeal.

Barristers Jenni Richards QC and Victoria Butler-Cole, who led Luisa Ferreira’s legal team, argued that Maria Ferreira had been under the continuous control and supervision of medics, was unable to leave hospital and was therefore, legally, deprived of her liberty.

But Lady Justice Arden, who headed the panel of appeal judges, said: “No-one would ordinarily regard a patient who is in intensive care as deprived of their liberty because their treatment and condition results in their being physically unable to leave the intensive care unit.”

A lawyer who represents the Intensive Care Society and Faculty of Intensive Care Medicine said the appeal judges’ decision was significant.

“This is an important decision for all NHS and independent providers that offer in-patient physical health care,” said Ben Troke, who is based at law firm Browne Jacobson.

“It seems to establish that any treatment of physical health will not in itself constitute a deprivation of liberty, where it is the same treatment that would be given to any patient regardless of their capacity.”

Appeal judges had examined a 2014 ruling, produced by Supreme Court justices on the rights of disabled people in care facilities, before reaching a conclusion.

Lawyers said that Supreme Court ruling clarified the circumstances in which disabled people were legally deprived of liberty and had implications for judges in the Court of Protection – where issues relating to people who lack the mental capacity to take decisions are considered.

And Sir James Munby, president of the Court of Protection, said it would have financial implications for local authorities with responsibilities for the care of disabled people.

Sir James said, in 2014, that the Supreme Court ruling meant that the number of disabled people being deprived of their liberty was ”vastly greater” than previously assumed.

He said there was likely to be a ”very significant” increase in the number of ”deprivation of liberty” cases Court of Protection judges would be asked to analyse and monitor.

Mr Troke said today that councils were dealing with a “colossal backlog” of cases involving deprivation of liberty issues.

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