Deprivation of liberty and intensive care: an update post Ferreira

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1 Special article Deprivation of liberty and intensive care: an update post Ferreira Behrad Baharlo 1, Daniele Bryden 2 and Stephen J Brett 3 Journal of the Intensive Care Society 2018, Vol. 19(1) 35 42! The Intensive Care Society 2017 Reprints and permissions: sagepub.co.uk/ journalspermissions.nav DOI: / journals.sagepub.com/home/jics Abstract The right to liberty and security of the person is protected by Article 5 of the European Convention on Human Rights which has been incorporated into the Human Rights Act The 2014 Supreme Court judgment in the case commonly known as Cheshire West provided for an acid test to be employed in establishing a deprivation of liberty. This acid test of continuous supervision and not free to leave led to concerns that patients lacking capacity being treated on an Intensive Care Unit could be at risk of a deprivation of liberty, if this authority was applicable to this setting. This article revisits the aftermath of Cheshire West before describing the recent legal developments around deprivation of liberty pertaining to intensive care by summarising the recent Ferreira judgments which appear for now to answer the question as to the applicability of Cheshire West in life-saving treatment. Keywords Deprivation of liberty, human rights, Cheshire West, Ferreira, medico-legal, legislation & jurisprudence, critical care The advent of the Supreme Court judgment in the case commonly known as Cheshire West 1 in 2014 marked the culmination of the evolution of jurisprudence relating to the European Convention on Human Rights (ECHR) Article 5 in England and Wales (see Box 1). This began with HL v UK 2 in 2004 and the subsequent need to plug the so-called Bournewood gap which resulted in the Deprivation of Liberty Safeguards (DOLS). Heralded as a positive step in affirming the universality of human rights, Cheshire West laid down an acid test in establishing a deprivation of liberty (DOL). Although the case concerned the care arrangements in the community of three adults lacking capacity, its well-meaning endeavour to affirm the universal applicability of human rights resulted in significant debate regarding its potential extension into hospitals, acute medical treatment and the intensive care unit (ICU). On one view, the acid test as laid down by Lady Hale in the Supreme Court to identify a DOL, as that of continuous supervision and control and not free to leave could comfortably be applied to treatment received in an ICU. Post Cheshire West The acid test appeared prima facie universal with potentially limitless scope. Unsurprisingly, a default position evolved amongst some legal and medical professionals that assumed Cheshire West required a context insensitive interpretation, with the potential to apply equally in the arena of clinical care as it did in the context of long-term social care. This resulted in great uncertainty for intensive care professionals and hospital trusts. The paucity of subsequent case law did little to dispel this assumption. Consequently, guidance issued to clinicians by numerous stakeholders including the Department of Health (DOH) and the Law Society seemed to reaffirm this position of wider interpretation in the absence of any judicial decision to the contrary. 3,4 In assisting clinicians and hospital trusts to maintain fidelity with the law, the Law Society indicated that an extension of the principles of Cheshire West into the hospital setting, including conveyance to and from hospital by ambulance, in emergency departments and the ICU should actively be considered, giving examples to illustrate accordingly. 4 Guidance from the DOH acknowledged the operation of DOLS in emergency or intensive care settings was causing some concern but reminded providers of the ability to self-authorise a DOL for up to 1 Imperial School of Anaesthesia, London, UK 2 Critical Care Department, Sheffield Teaching Hospitals NHS Foundation Trust, UK 3 General Intensive Care Unit, Hammersmith Hospital, Imperial College Healthcare NHS Trust & Department of Surgery and Cancer, Imperial College London, UK Corresponding author: Behrad Baharlo, Imperial School of Anaesthesia, London, UK. bbaharlo@ .com

2 36 Journal of the Intensive Care Society 19(1) Box 1. Article 5(1) of the ECHR. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ECHR: European Convention on Human Rights. seven days by following the urgent authorisation process. 3 This status quo was further legitimised by an acceptance from government of the need to reform the entire law underpinning DOLS, and the subsequent work by the Law Commission in this regard proceeded on the basis that deprivation of liberty was a concept that could apply equally in the intensive care setting. 5 Inevitably an increase in DOLS applications followed the Cheshire West judgment; 137,540 applications representing a ten-fold increase (over 10% originating in acute hospitals) were received by local authorities in the year immediately after the Cheshire West judgment (compared to 13,700 in ). 6 Despite these statistics, the situation on ICUs was somewhat confused with significant variability throughout the country in firstly identifying a potential DOL, and subsequently making a DOLS application. Well-intentioned guidance provided to mitigate for such confusion failed to appease the situation. To identify a potential DOL, the Law Society advised ICU professionals to consider the hypothetical question of what their reaction would be if a family member properly interested in their care sought to remove them (the subject) from hospital. 4 Moreover, the DOH in its guidance accepted that a patient who is unconscious under anaesthetic but does not have an underlying mental disorder (within the meaning of the Mental Health Act 1983 disregarding exclusions for learning disabilities) would not even be eligible for the DOLS procedure. 3 As such their detention would have to be authorised by the Court of Protection under section 16 of the MCA 2005 (see Boxes 2 and 3). In the absence of law reform, the question however remained, whether the acid test which appeared to work so elegantly in addressing the mischief that arose in Cheshire West was applicable in the provision of life-sustaining treatment on an ICU, accepting any wider resource implications as the price for safeguarding the individual right to liberty. The opportunity to answer this question came, albeit indirectly, via an application for a judicial review of the decision by Her Majesty s (HM) Coroner for Inner London South not to hold an inquest by jury into the death of a patient on an ICU in R(on the application of Ferreira) v HM Senior Coroner for Inner London South. 7 This Box 2. Mental Health Act 1983 (as amended by the Mental Health Act 2007). Defines a mental disorder as any disorder or disability of the mind. It excludes learning disabilities (unless accompanied by abnormally aggressive or seriously irresponsible conduct ) and dependence on drugs and alcohol. The mental health requirement that must be satisfied to qualify for the DOLS procedure is described in Schedule A1 of the Mental Capacity Act 2005 as a disorder within the meaning of the Mental Health Act but disregarding the exclusions for persons with learning disabilities. Consequently, the Department of Health does not consider a state of unconsciousness in itself to be a mental disorder for the purposes of Schedule A1 of the Mental Capacity Act 2005, explicitly stating that an individual who is unconscious under anaesthetic but does not have a mental disorder (as defined) is not eligible for DOLS. 3 DOLS: Deprivation of liberty safeguards. Box 3. Deprivation of liberty safeguards. The DOLS are a complex interplay between the MHA 2007 and the MCA 2005, prescribing a legislative framework by which people subject to a DOL in registered settings may have the DOL authorised and thus brought into compliance of the law (ECHR). It is a safeguarding tool used to bridge the Bournewood gap and comply with article 5(4) of the ECHR. A dual legislative regimen results in a web of complex interactions between schedule A1 and 1A of the MCA 2005 and the MHA 2007 creating a bewildering framework to navigate for persons who are not ineligible to be deprived of their liberty under the MCA 2005 via a standard or urgent authorisation. A standard authorisation requires the assessment of six qualifying requirements all of which must be assessed to be compliant (age, mental health, mental capacity, best interests, eligibility and no refusal). To satisfy the mental health requirement the subject must be suffering a mental disorder (within the meaning of the MHA 2007) but disregarding any exclusion for persons with learning disabilities. 22 The mental health requirement introduces a jurisdictional limit for DOLS that is narrower than the general capacity-based limit described in section 2 of the MCA Of relevance to intensive care, a DOLS authorisation cannot be given for people in a persistent vegetative state, minimally conscious state caused by concussion or incapacitation by a head injury, brain injury, alcohol or drugs or the effects of a physical disorder or its treatment. 7 If the subject does not satisfy any of the six qualifying requirements then their detention would have to be authorised by the Court of Protection under section 16 of the MCA DOLS: Deprivation of liberty safeguards; MHA: Mental Health Act 1983 (as amended 2007); MCA: Mental Capacity Act 2005; DOL: Deprivation of liberty; ECHR: European Convention on Human Rights

3 Baharlo et al. 37 application was dismissed by the High Court in October 2015, leading to appeal in which the Intensive Care Society (ICS) and the Faculty of Intensive Care Medicine (FICM) through the Legal and Ethical Policy Unit acted as joint interveners. On the 26th January 2017, the Court of Appeal handed down its judgment, holding that Cheshire West is not the precedent authority in establishing a deprivation of liberty in the ICU and consequently a wholesale extension of that authority into urgent medical care as unwarranted. This article summarises this landmark judgment and its implication for intensive care practice going forward. R(on the application of Ferreira) v HM Senior Coroner for Inner London South High Court ([2015] EWHC 2990 (Admin), MHLO 76) The initial case before Gross LJ and Charles J was the first occasion a lower court had been asked to define the scope of Cheshire West in the context of intensive care treatment. The case centred on Maria Ferreira, a 45-year old with Down s syndrome, who suffered learning difficulties and limited mobility needing 24- hour care (which was principally given by her sister). Maria died in the ICU of Kings College Hospital after an acute illness. Her sister, Luisa, as the claimant, brought judicial review proceedings against HM Senior Coroner for Inner London South for his decision not to summon a jury to hear the inquest into Maria s death. At its core was the Coroners and Justice Act (CJA) 2009 and if, under its relevant sections, the coroner was duty bound to call a jury because Maria was in state detention. 8 The question asked of the court was whether Maria s treatment in ICU amounted to state detention with the basis of the claimant s case being that Maria was deprived of her liberty in terms of Article 5 of the ECHR and therefore this amounted to state detention for the purposes of the CJA Gross LJ and Charles J dismissed the claim for varied and conflicting reasons. Gross LJ utilised the concept of context to reason that a DOL had not occurred, before concluding the coroner s decision was not unreasonable, accepting that another coroner may have concluded differently. On the other hand, Charles J grappled with the language employed in the CJA 2009 concluding that because Maria was not compulsorily detained, she was not in state custody and thus was not deprived of her liberty. 7 Subsequently, the case was reviewed in the Court of Appeal. Court of Appeal [2017] EWCA Civ 31 The Court of Appeal judgment was delivered by a single judge, Arden LJ, with whom Mcfarlane LJ and Cranston J agreed. It simplified the reasoning upon which the appeal was dismissed and in doing so provided clarity in respect to Article 5 within the intensive care setting. The central question remained whether the decision of HM Coroner not to convene an inquest by jury was lawful under the CJA The appellant s principal argument was that the coroner and the divisional court failed to recognise the acid test was applicable and should have been applied. It was argued that Maria Ferreira was under continuous supervision and control of the hospital, unable to leave due to sedation and ventilation, with any acquiescence to treatment on Maria s part being an irrelevance to establishing a potential infringement of her Article 5 rights. Pertinent to this argument was that the hypothetical question regarding the response to attempts by family members to remove a patient, rebuffed as fanciful by Gross LJ in the divisional court, should have been asked. 4,7 Counsel for HM Coroner argued that concluding an Article 5 infringement in this case does not promote the original purpose of that article. The essence of this case was that the doctors did not want to keep Maria Ferreira confined or to impose a regime of deprivation but were intending for her to leave as soon as it was safe for her to do so. The court granted a joint intervention by the ICS and FICM describing the realities of administering and receiving care on an ICU and the impact of DOLS, without comment or prejudice to the specifics of this case. In describing the typical patient journey through a critical care episode, the evidence drew the Court s attention to the difficulties of establishing capacity and consent for ICU treatment in both the admission and continuing care for the 80% of emergency/unplanned admissions. 9,10 The intervention also drew attention to the ongoing difficulties of predicting the need for additional treatment, making it extremely difficult if not impossible to advise the patient and or relatives of the degree of organ support or the likely experiences and outcome anticipated for an individual. 9 Notwithstanding the potential for DOLS proceedings to harm the relationship between the patient s family and clinical teams and the fact most patients would be physically unable to leave, the court accepted the submission that retrospective actions to identify, and subsequently refer for authorisation, a potential DOL in what would be a normal ICU case would result in a heavy burden to front-line senior medical and nursing staff resulting in a distraction from delivering effective clinical care. 9,11 Though such arguments around resource implications alone do not (and should not) generally influence legal obligations, the court did take comfort from avoiding such costs where no policy justification is apparent, accepting that Cheshire West should not apply as it was directed towards long-term care, with the policy justifications cited being absent in urgent life-saving care.

4 38 Journal of the Intensive Care Society 19(1) A joint intervention by the Secretaries of State (SOS) for Health and Justice adopted a number of the arguments presented by the ICS and FICM but also argued that Article 5(1)(e) of the ECHR only applies to persons of unsound mind. 12 Thus, in a normal ICU case, a person with a disorder of consciousness, a person with a brain injury or a person temporarily unconscious (with no accompanying mental disorder) are not persons of unsound mind within the meaning of Article 5(1)(e). Citing the inability to prescribe in law a deprivation in such cases other than by an application to the Court of Protection (recall the qualifying requirements for DOLS standard authorisation, see Box 3), they argued that the absence of such lawful remedy is indicative that no such deprivation of liberty exists. Assessing the merits of the appellant s principal argument Arden LJ based the primary reasoning for her dismissal of the appeal directly on European Court of Human Rights (ECtHR) jurisprudence and Cheshire West (in contrast to the High Court) and its application to urgent care. The court confirmed the paucity of ECtHR case law that is directly relevant to acute medical treatment. It instead focussed on the multi-factorial themes that have evolved in the ECtHR in assessing a DOL, stemming mainly from cases involving psychiatric care but also from outside of healthcare. One such precedent was instrumental to this judgment: the police tactic of kettling individuals behind barricades as a method of crowd control. Using the case of Austin v UK, 13 the court held that Article 5(1) is not concerned with restrictions of liberty like kettling, only deprivation and in legal terms, the difference between deprivation and restriction is one of degree or intensity (see Boxes 4 and 5). 14 Austin allowed the court to hold that if the interference is outside of the Article 5(1) exceptions, for example provision of intensive care, and the ECtHR reaches the conclusion the interference was justified, then it can conclude that no deprivation of liberty occurred. Quoting Arden LJ, The Strasbourg Court (ECtHR) looks to the realities of the situation. It accepts that not every interference with a person s liberty of movement involves a potential violation of Article 5. In Austin Box 4. Restriction versus deprivation? A deprivation of liberty is legally different to a restriction in freedom of movement. The line between a restriction of movement and a DOL is important. The UK authorities have no legal obligation to prevent a restriction, but are obliged to prevent a DOL. Strasbourg (ECtHR) jurisprudence provides guidance on this. DOL: Deprivation of liberty; UK: United Kingdom; ECtHR: European Court of Human Rights located in Strasbourg. [it] has specifically excepted from Article 5(1) the category of interference described as commonly occurring restrictions on movement. In my judgment, any deprivation of liberty resulting from the administration of life-saving treatment to a person falls within this category. 15 Treatment on an ICU is a (relatively) commonly occurring event which can occur to persons of sound or unsound mind without discrimination. So long as the treatment is kept to a minimum required for that purpose and is broadly similar for patients being treated for a physical disorder between those of sound and unsound mind, there is no interference with Article 5. The Court of Appeal held that Cheshire West is not the governing authority in cases of acute or urgent care, accepting the submissions that it was directed at an entirely different situation providing no guidance in regard to Article 5 in urgent or intensive care treatment. 15 Arden LJ presented a further avenue to reaching the same verdict, if it was established she erred in law. Even if the acid test in Cheshire West were to be applied, she concluded the deceased was always free to leave, if there had been a lawful decision to do so (for example, the decision of a patient with capacity Box 5. ECtHR case law relating to restriction versus deprivation. Austin v UK 13 - Borne out of the anti-capitalist protests in 2001, four applicants complained that their restriction within a police cordon (a measure known as kettling ) for up to seven hours during a demonstration in central London amounted to a DOL. Using Engel the court found the coercive nature and duration of the cordon would ordinarily be indicative of a DOL were it not for the type and manner (necessity of actions taken in view of alternative options). Notably the police s repetitive attempts to discharge the cordon safely and the potential for direct confrontation with protestors being of greater risk to person and property tipped the balance towards a restriction (thus outside Article 5). Engel v Netherlands 14 - Regarding procedures employed to discipline soldiers in the Dutch army, it was held that when assessing if a restriction amounts to a DOL, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors, such as type, duration, effects and manner of implementation of the measure in question. It was suggested that the distinction between a restriction and deprivation is merely one of degree of intensity and not one of nature or substance. ECtHR jurisprudence has been described as paying significant regard to the concrete situation on the ground. ECtHR: European Court of Human Rights; DOL: Deprivation of liberty; UK: United Kingdom.

5 Baharlo et al. 39 or that of a court in the case of a patient lacking capacity). 15 Furthermore, Arden LJ dismissed the idea that treatments given on an ICU are generally attributable to the state,...in the case of a patient in intensive care, the true cause of their not being free to leave is their underlying illness, which was the reason why they were taken into intensive care. The person may have been rendered unresponsive by reason of treatment they have received, such as sedation, but, while that treatment is an immediate cause, it is not the real cause. The real cause is their illness, a matter for which (in the absence of special circumstances) the state is not responsible. 15 In summary, Ferreira held that urgent life-saving physical treatment can be given to patients lacking capacity in the absence of an underlying mental disorder, or to a patient with an underlying mental disorder as long as the treatment is materially analogous to that given to a patient without an underlying mental disorder when the physical illness is not attributable to the state, without a violation of their Article 5 rights. Discussion The Court of Appeal s judgment in Ferreira provides much-needed clarity and a more certain legal basis for regular intensive care practice involving incapacitated patients. It is, for now, the leading precedent regarding ICU care and Article 5(1), holding unambiguously that such rights are not jeopardised during the administration of life saving treatment so long as such treatment is unavoidable, is as a result of circumstances beyond the control of the authorities being necessary to avoid serious injury and is kept to the minimum required for that purpose. Furthermore, the treatment bestowed should be materially the same treatment as would be given to a person of sound mind with the same physical illnesses (see Table 1). 15 However, Ferreira yields questions that undoubtedly will be the subject of further debate. The judgment makes no attempt to define what amounts to immediate life-saving treatment. Whilst the onset of life-saving treatment may be straightforward to identify, the inevitable question arises, at what point does immediate life-saving treatment end and continuing care begin, especially in the initial stages post critical illness? Thus, in the absence of recovery of capacity, at what point does Ferreira end and the ceding of Article 5 rights give way to the requirements of Cheshire West for an individual s treatment? On the analysis of Arden LJ, a DOL does not occur in a critically ill patient of unsound mind so long as the following caveats are satisfied; that the treatment is not materially different to that which would be bestowed on a patient of sound mind and is unavoidable as a result of circumstances beyond the control of the authorities. Currently, a material difference and beyond state control have yet to be defined in this context. For example, what if a treatment regimen was specifically tailored to a person of unsound mind that differs from that given to an analogous patient of sound mind, e.g. the timing of tracheostomy to aid weaning from a ventilator? It is unlikely that such a situation, with clinical justification, would be viewed as a material difference, especially in the context of life-saving treatment. In the Court s judgment, the example given by Arden LJ, which clearly falls outside of the criteria described, was that of NHS Trust I v G. 16 Here, a pregnant woman who lacked the capacity to make decisions about her peri-natal care due to an underlying psychiatric illness was actively objecting to obstetric care and intervention. She was the subject of a judgment that rendered lawful the potential provision of obstetric care to include a Caesarean section and restraint amounting to a DOL which would clearly be materially different to that of a woman of sound mind. A further example might be that of a patient with Schizophrenia who is the victim of self harm or trauma (which may or may not be due to the underlying mental disorder) and requiring life-saving treatment. During the course of treatment there may arise a time when a divergence in the management of such sequelae of critical illness like agitation or delirium occurs. The absence of a competent refusal to continuing ICU treatment may necessitate the use of treatments that are materially different to that employed in a person without a mental disorder in a similar situation, for example physical restraints in addition to pharmacotherapy to control extreme agitation and delirium. Furthermore, the employment of a registered mental health nurse (RMN) in addition to ICU staff to attend a patient being treated outside of the provisions of the Mental Health Act could conceivably be seen by some as coercive in nature and materially different, potentially giving rise to a DOL that would require authorisation. Readers are encouraged to remain vigilant to factors that would be considered atypical that arguably take the patient outside of the conditions outlined in Ferreira and thus vulnerable to an Article 5 violation. Arden s LJ judgment refrained from establishing a temporal definition as to what amounts to a DOL in part due to the judgment suggesting that in the course of providing life-saving treatment the situation is removed from engaging Article 5 in its entirety. Subsequently, the potential for engaging Article 5 must be realised at the conclusion of the life-saving treatment. This is important in the case of patients who do not regain capacity at the conclusion of their critical illness, e.g. after a cardiac arrest. Such a patient would fall outside of Article 5 at least initially, however there must come a time when a potential DOL borne out of the need to deliver continuing

6 40 Journal of the Intensive Care Society 19(1) Table 1. Article 5 and intensive care: post Ferreira. No DOL DOLS application required Application to Court of Protection Patient who has capacity to and consents to the arrangements as such would mean that there is no deprivation of liberty Where arrangements are in place to deliver life-saving treatment to a patient who is unable to consent to them where: the physical illness requiring treatment is not attributable to the state treatment given is materially similar as would be given to an analogous patient who is able to give consent to the arrangements restrictions are unavoidable restrictions are necessary to avoid serious injury restrictions are kept to a minimum required for the purpose In respect of any patient who is being given non-life-saving treatment or continuing care in hospital or care home, where the patient is unable to consent to the arrangements made for them in hospital and are therefore deprived of their liberty, and who satisfies the mental health requirement set out in paragraph 14 of schedule A1 of the MCA 2005 (Note 3) Where arrangements are in place to deliver life-saving treatment to a patient who is unable to consent to them where conditions in the first column are not met. DOLS can be used where the patient satisfies the mental health requirement set out in paragraph 14 of schedule A1 of the MCA 2005 (Note 3) Non-life-saving treatment or care (continuing care) in an incapacitous patient without an underlying mental disorder, e.g. persistent vegetative state, minimally conscious state, residual functional neurological deficit Where arrangements are in place to deliver life-saving treatment to a patient who is unable to consent to them where conditions in the first column are not met, and where the patient does not satisfy the mental health requirement set out in paragraph 14 of schedule A1 to the MCA (Note 3) Application to Court of Protection should always be considered where arrangements are implemented in relation to a patient who does not have capacity to consent to or refuse medical treatment but is actively refusing or objecting to medical treatment e.g. a mobile patient with a recovering head injury on ICU/ HDU who may be awaiting further assessment or transfer to another facility DOL: Deprivation of liberty; DOLS: Deprivation of liberty safeguards; MCA: Mental Capacity Act Note (1): this table concerns the circumstances of those who are subject to arrangements which satisfy the acid test set down by the Supreme Court in the Cheshire West case, i.e. being under continuous supervision and control and not free to leave. Note (2): DOLS does not provide authority to treat a patient. Treatment is carried out in the case of those who lack the capacity to consent to it on the basis of the defence contained in s.5 of the Mental Capacity Act 2005 (which also applies to restraint where the additional conditions set down in s.6 are met). Note (3): Paragraph 14 of schedule A1 of the MCA states: 14 (1) The relevant person meets the mental health requirement if he is suffering from a mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability). (2) An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act. treatment needs to be prescribed by law. Would an ongoing requirement for artificial hydration and nutrition be considered life-saving, thus allowing it to continue indefinitely? This seems somewhat divorced from the spirit of Arden s LJ judgment, so potential for a DOL may materialise requiring authorisation in due course. Finally, what of the patient who has a residual disorder of the mind secondary to a physical illness which is reversible, for example delirium? Again, the patient would fall outside of Article 5(1)(e). With respect to ICU delirium, it might be argued that as the presence of delirium is associated with a significant risk of mortality, its diagnosis would indicate that life-threatening illness remains and its treatment would be consistent with Arden s LJ judgment. The situation clearly changes if such disorder of the mind is deemed to be irreversible or is functional in

7 Baharlo et al. 41 nature when previous considerations would surface. For example, the patient with a head injury awaiting placement at a rehabilitation facility would be subject to supervision and prevented from leaving (and on occasion submitted to restraint) on an ICU but their treatment would not be considered as life-saving. In effect, if the ICU is to be utilised as a place of safety for a person within the hospital because of its ability to provide continuous supervision and control then a DOL is likely to materialise. Consequently, Ferreira is not a fait accompli, and it is imperative for the ICS, FICM and other professional stakeholders to remain engaged with the Law Commission and government in their review of legislation in this area. Illustrating the pace of recent developments, the Law Commission recently published draft legislation which would see the scrapping of the DOLS system and its replacement with a new scheme called the Liberty Protection Safeguards. 17 Whilst still at an embryonic stage and some way from a final Act of Parliament, it would legislate for the temporary authorisation of a DOL in urgent cases by an Approved Mental Capacity Professional for a period of up to 14 days, though it steers clear of defining a DOL. The draft legislation also proposes an amendment to section 4B of the Mental Capacity Act (MCA) 2005 allowing for acts, such as restraint, that amount to a DOL in an emergency situation to prevent serious harm to the patient. Readers are reminded that the MCA 2005 does not currently provide any defence for acts that might amount to a DOL (section 5 and 6), thus clinicians have voiced concerns regarding the deployment of such restraints due to the risk of fluxing from a lawful restriction to a potentially unlawful deprivation. 18 However, whether or not the Liberty Protection Safeguards in their envisaged form will ever reach the statute book and what form this might entail remains uncertain as government legislative priorities may lay elsewhere after the general election. The Conservative s manifesto commitment to a new Mental Health Bill may also be a complicating factor if they are returned to government. 19 Notably Arden LJ does not suggest that a DOL can never occur in respect of hospital treatment and it is likely that this judgment does little for our colleagues involved in the longer term treatment of incapacitated patients. It also does not give a defence to potential Article 5 infringements borne out of prolonged hospital admissions for non-medical reasons (for example social care placement issues). The Supreme Court judgment in Cheshire West opened a Pandora s box of extraordinary legal argument and analysis, some of which at times appeared divorced from the real world. The Court of Appeal has, for now at least, emphatically offered some common sense by providing a simple and eloquent analysis as to why Cheshire West does not as a matter of course extend into urgent medical care, without negating the very essence of the right in question. However, significant questions remain. The Austin case somewhat relied upon in this judgment was highly controversial in itself, with some legal observers describing it as an anomaly. 20 It could also be argued that the position of a patient lacking capacity on the ICU is not easily reconcilable with the judgment in HL v UK, 2 where it was concluded that the long-held doctrine of necessity did not provide a voluntary patient with sufficient protection against an arbitrary DOL. Furthermore, there remains a significant issue around the concept of freedom to leave with the Court of Appeal having previously (in the context of social care) ruled that a person s physical disability does not take them outside the scope of Article The appellant has been refused permission to appeal by the Supreme Court (the same court that gave us Cheshire West), therefore it appears that Ferreira is the authoritative interpretation of DOL and the ICU for now at least. Acknowledgements The authors would like to thank Alex Ruck Keene and Ben Troke for their invaluable contribution in proof reading and suggesting amendments to this manuscript. Any errors of legal fact are entirely the responsibility of the authors. Declaration of conflicting interests The author(s) declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: D Bryden provided the clinical submission to the Court of Appeal in Ferreira on behalf of the ICS and FICM; at the time SJ Brett was President of the ICS. Disclaimer Whilst the authors have endeavoured to ensure the content herewith is correct, the information contained is intended for information only, are the views of the authors and is not intended to construe or replace formal legal advice. References and notes 1. P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another, P and Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC HL v UK [2004] ECHR Department of Health Guidance. Response to the Supreme Court Judgment / Deprivation of Liberty Safeguards. 22 October 2015, /DH_Consolidated_Guidance.pdf (accessed 31 May 2017). 4. Law Society. Identifying a deprivation of liberty: a practical guide Law Commission. Mental Capacity and Deprivation of Liberty (A Consultation Paper). Consultation Paper No Centre, Health and Social Care Information. Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report

8 42 Journal of the Intensive Care Society 19(1) 7. R(on the application of Ferreira) v HM Senior Coroner for Inner London South EWHC 2990 (Admin), MHLO UK Legislation. Coroners and Justice Act Sections 7(2)a, 48(1) and 48(2). 9. D, Bryden. Witness statement made on behalf of the interveners the Intensive Care Society and Faculty of Intensive Care Medicine in R(on the application of LF) v HM Senior Coroner for Inner London South in the Court of Appeal. [2017] EWCA Civ ICNARC. ICNARC Case Mix Programme Summary Statistics Ruck Keene A. Submission on behalf of the Intensive Care Society and the Faculty of Intensive Care Medicine in R(on the application of LF) v HM Senior Coroner for Inner South London in the Court of Appeal.[2017] EWCA Civ Winterwerp v Netherlands [1979] ECHR Austin and others v UK [2012] 55 EHRR Engel v Netherlands [1976] ECHR R(on the application of Ferreira) v HM Senior Coroner for Inner London South [2017] EWCA Civ NHS Trust I v G [2015] 1 WLR Law Commission. Mental Capacity and Deprivation of Liberty. No UK Legislation. Mental Capacity Act Sections 4,5 & The Conservative and Unionist Party Manifesto. Forward, together. Our plan for a stronger Britain and a prosperous future, [2017, accessed 28 May 2017]. 20. Cline D. Deprivation of Liberty. Has the European Court of Human Rights recognised a Public Safety exception? Utrecht J Int Law Eur Law 2013; 29: Rochdale MBC v KW [2015] EWCA Civ 1054, [2015] MHLO UK Legislation. Schedule A1 of the Mental Capacity Act Section 14.