Legal Update – Deprivation of liberty in intensive care

R (Ferreira) v HM Senior Coroner for Inner South London & others [2017] – Court of Appeal judgment provides much needed clarification of the circumstances in which a deprivation of liberty arises in an intensive care setting.

The ‘acid test’ for identifying a deprivation of liberty (DoL) was established by Lady Hale in the Supreme Court case of Cheshire West in 2014, namely when a person lacking capacity is subject to continuous supervision and control and is not free to leave. Cheshire West was a case which focused on whether living arrangements for three mentally incapacitated adults gave rise to a deprivation of liberty.  The decision in Cheshire West led to a wholescale increase in DoLS authorisation applications (which has left local authorities floundering under the administrative burden) but it has also led to confusion as to precisely how far Lady Hale intended her ‘acid test’ to extend.  An example of this is the intensive care setting.

The majority of patients in intensive care units lack capacity to make decisions about their treatment, care and confinement either due to injury, disease or medication. The use of restraint (be it physical, mechanical or pharmacological) is routinely used in ICU to safely facilitate the provision of intensive care.  Following Cheshire West there has been justifiable concern amongst Acute Hospital Trusts and their intensive care staff that the use of such restraints may amount to unlawful deprivation of liberty where the patient lacks capacity to consent to them – technically such patients appear to fulfil the ‘acid test’. Consequently, intensive care staff frequently face the dilemma of whether to go through the burdensome process of obtaining a DoLS authorisation, or run the risk of unlawfully depriving a patient of their liberty.

Although the case of Ferreira actually concerned the interpretation of coronial law, the Court of Appeal has provided welcome clarification of the circumstances which can give rise to a deprivation of liberty in an intensive care (and emergency treatment) setting. Giving judgment on behalf of the court Lady Justice Arden stated that restrictions on movement arising from the administration of life-saving treatment to a person who lacks capacity to consent do not amount to an unlawful  deprivation of liberty providing that:-

• the restrictions are rendered unavoidable as a result of circumstances beyond the control of authorities; and
• the treatment is necessary to avert a real risk of serious injury or damage; and
• the restrictions are kept to the minimum required for that purpose.

Lady Justice Arden stressed that such treatment must be given in good faith and must not be materially different to that which would ordinarily be given to a patient of sound mind who is suffering the same medical condition.  For example, a patient of unsound mind suffering life-threatening breathing difficulties, requiring sedation on ICU in order to intubate and ventilate him, will receive materially the same treatment as that which would be given to a patient of sound mind suffering the same respiratory problem who requires ventilation. Both patients require pharmacological restraint in the form of sedation in order to intubate them.

Contrast this with the scenario where a patient with severe autism on ICU requires sedation as a form of restraint following surgery to prevent agitation and the risk of serious self-injury. The use of sedation in these circumstances clearly amounts to treatment materially different to that which would be given to patient of sound mind who has undergone the same surgery and as such gives rise to a deprivation of liberty requiring a DoLS authorisation.

In Ferreira the Court of Appeal went on to provide helpful clarification as to what is meant by the ‘not free to leave’ element of the ‘acid test’. Invariably ICU patients are ‘not free to leave’ due to their underlying physical illness (and the necessary treatment thereof) rather than any refusal by staff to accede to a patients request to leave.  Lady Justice Arden made clear that the focus must be on whether the patient expresses a wish to leave and is prevented from doing so by the state. Where it is the patient’s physical illness which prevents them from being ‘free to leave’ the ‘acid test’ is not satisfied. Likewise if it is patient’s family, rather than the patient themselves, who express the wish to remove them (and are prevented from doing so by the state) the ‘acid test’ is not satisfied either.

Although Ferreira concerned deprivations of liberty in an ICU setting, the reasoning in the judgment appears to extend to life-saving treatment across acute inpatient healthcare settings.

As a consequence of this judgment, Acute Hospital Trusts can (for the time being at least)  be spared the administrative burden of having to make applications for DoLS authorisations for the vast majority of mentally incapacitated patient’s in ICU. More importantly, intensive care staff can get back to their real priority – the provision of safe and effective care to critically unwell patients. These considerations clearly influenced the court’s decision with Lady Justice Arden concluding:

To require authorisation of the deprivation of liberty in what would be a normal ICU case would involve a significant dilution and distraction of clinical resource, time and attention. That must inevitably risk jeopardising the outcome for all ICU patients, for no apparent policy reason.

One final note of caution – the Ferreira family have applied for permission to appeal this decision to the Supreme Court so this may not be the court’s final word on this matter.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk