DoLS and ITU – Common Sense Prevails
In a landmark decision on 27 January 2017 the Court of Appeal concluded that a patient with a learning disability who died whilst in the Intensive Care Unit at Kings College Hospital was not in “state detention” and hence the Coroner’s decision not to proceed with a full jury inquest was justified (Ferreira, R (on the Application of) v HM Senior Coroner for Inner South London).
F suffered from downs syndrome and had been admitted to the ICU where she died in December 2013. An inquest into her death was delayed pending a dispute about whether it should or should not be held with a jury. The Senior Coroner had concluded that F was not deprived of her liberty and therefore not in state detention but her family challenged the decision. The Court of Appeal held that F had not been 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. Whilst she was physically restricted in her movements by her infirmity and the treatment she received, the root cause of any loss of liberty was her physical condition not any restriction imposed by the hospital. Accordingly there was no basis on which it could be said that there was a deprivation of liberty and therefore no reason to suspect state detention within the meaning of the Coroner’s and Justice Act 2009.
This decision will have a significant practical impact. It means applications for DoLS authorisations do not need to be made for incapacitated patients receiving medical care in ICU whether or not the patient has any pre-existing mental disorder (the position remains less clear for acute medical care). It also means that inquests into deaths and ICU patients do not have to be heard with a jury because dying in ICU is not a death in state detention.
This may not be the end of the story as the family have applied for permission to appeal to the Supreme Court and legislation is expected in the Policing and Crime Bill 2017 which hopefully will clarify whether DoLS come within the definition of state detention in a hospital context.