Is there a deprivation of liberty?

It is easy to see why medical practitioners may become confused where, following Cheshire West, there may be a deprivation of liberty where an incapable patient is not free to leave and cannot be discharged from hospital for an indefinite period (which may be many days or weeks), pending identification of a suitable residential place.

Cases such as FG demonstrate that medical treatment delivered to an acutely unwell, incapable patient may amount to a deprivation of liberty; but the case of Ferreira suggests that generally there is not a deprivation of liberty if the patient is receiving life-saving treatment of a ‘routine’ character.

In FG the prospect that the patient might require forcible restraint highlighted the likelihood of a potential deprivation of liberty. However, the following points must be remembered:

• Forcible restraint is only one of the more obvious factors which may point to a deprivation of liberty.
• Patients (including those who lack capacity) will exhibit the full range of awareness and compliance. Such awareness and compliance will fluctuate. A care regime that requires only occasional rather than continuous restraint, but has inherent within it the ever-present prospect of restraint being used, is likely to satisfy at least the limb of the acid test relating to ‘continuous supervision and control’.
• For the compliant incapacitated patient, where restraint is not anticipated, the deprivation of liberty may not be obvious. In these circumstances the question must be asked, ‘would this patient be allowed to leave’?  If the answer is no, then it seems likely at least one limb of the Cheshire West acid test is satisfied.

Following Ferreira, in some cases it will not be necessary to obtain a DOLS authorisation (or court authorisation for deprivation of liberty) merely to treat an acutely unwell inpatient who is otherwise physically incapable of leaving the ward due to their acute medical problems. However, caution should be exercised.

The Court of Appeal specifically contrasted the situation of Maria Ferreira with that of FG, saying:

‘The pregnant woman in question was to be prevented from leaving the delivery suite and might be compelled to submit to invasive treatment, such as a Caesarean section. If these steps had to be taken, the treatment would be materially different from that given to a person of sound mind. By contrast, I do not consider that authorisation would be required because some immaterial difference in treatment is necessitated by the fact that the patient is of unsound mind or because the patient has some physical abnormality.’

The scope of what is generally termed ‘the Ferreira carve out’ remains to be determined. It has been considered in two leading cases. In Re D, Lady Arden reiterated the principle set out in Ferreira, saying:

‘It follows that there will be cases where a person loses their liberty but the acid test in Cheshire West, as Lady Hale describes it, does not apply. That conclusion is shown by observing that D’s case is about living arrangements. It is not about a child, or anyone else, needing life-saving emergency medical treatment. For the reasons which the Court of Appeal (McFarlane LJ, Sir Ross Cranston and myself) gave in  R (Ferreira) v Inner South London Senior Coroner  [2018] QB 487, the situation where a person is taken into (in that case) an intensive care unit for the purpose of life-saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so long as the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition, is necessary and unavoidable, and results from circumstances beyond the state ’ s control (para 89).’

Subsequently, in An NHS Trust v X (No 2), Sir James Munby cited the above passage in Re D; he considered this part of the legal landscape was ‘difficult and as yet only partially explored’, noting the tension between various parts of the case law. Although he considered there was no need to decide the point further, he did express a view that the provision of an urgently required blood transfusion would fall within the carve out.

A helpful question to ask is whether the patient’s situation and treatment is what any patient would require had they had the misfortune to succumb to that particular illness (in which case Ferreira is more likely to apply), or whether in fact their situation and the treatment is affected by issues of mental disorder or, most broadly, ‘unsoundness of mind’. Controversial treatment may well engage questions both as to the lawfulness of treatment and whether the patient is to be regarded as being detained for the purposes of administering such treatment.