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Public Authority Obligations in Medical Treatment cases (23 February 2017)

Date: 23/02/2017
Duncan Lewis, Legal News Solicitors, Public Authority Obligations in Medical Treatment cases

A person is in state detention if he or she is compulsorily detained by a public authority. The Queen, on the Application of Ferreira [2015] EWHC 2990 considered deprivation of liberty as a result of medical treatment. Section 5 of the Mental Capacity Act 2005 enables a hospital to give treatment to a person’s lacking capacity to consent to it where the treatment is in the patient’s best interests.

The Claimant in the case of LF, R (on the application of) v HM Senior Coroner for Inner South London & Anor [2015] EWHC 2990 (Admin) telephoned her GP surgery, concerned that the patient in question had finished a course of antibiotics and was short of breath and distressed. On the advice of the GP, the Claimant called an ambulance; the patient was taken to and admitted to "the hospital" and diagnosed with pneumonia. Over the course of the patient’s stay at Kings Hospital, London, the patient, who suffered from Down’s syndrome, became increasingly unwell after it seemed as though she would make a steady recovery.

This case arose as a result of her increased anxiety throughout her stay which created questions surrounding her detainment at the hospital,(i.e. the Public Authority), which in turn raises questions that concern both mental health and public law. In this case, the patient died on the 7th December 2013, due to grabbing at and disconnecting her endotracheal tube, worsened by wearing only one mitten, used to prevent such disconnections, as a result of a short supply of mittens on the ward.

The coroner in this case observed that there were circumstances where a hospital patient or care home resident was detained. He recorded that a person subject to a "deprivation of liberty" authorised under the Mental Capacity Act 2005, should be regarded as compulsorily detained. The phrase "compulsorily detained" conveyed the concept of a person "being confined in a place…without being free to leave.”
As has been mentioned, Section 5 of the Mental Capacity Act 2005 enables a hospital to give treatment to a person’s lacking capacity to consent to it where the treatment is in the patient’s best interests.

Section 5 is as follows:

“Acts in connection with care or treatment

(1)If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—

(a)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b)when doing the act, D reasonably believes—

(i)that P lacks capacity in relation to the matter, and

(ii)that it will be in P's best interests for the act to be done.

(2)D does not incur any liability in relation to the act that he would not have incurred if P—

(a)had had capacity to consent in relation to the matter, and

(b)had consented to D's doing the act.

(3)Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4)Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).”


Treatment cannot be provided

A hospital cannot give treatment where it deprives a patient who is unable to give consent of their liberty without an order of the court, or the appropriate authorisation under schedule A1 to the MCA.

“This includes a form of “urgent authorisation”. It requires the treating hospital to complete a quantity of paperwork. The authorisation can last for a maximum of 14 days, which may be adequate in most cases of patients in ICUs.”

Applied to case

Lady Justice Arden stated that “P” in this case:

“was not 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. She was physically restricted in her movements by her physical infirmities and by the treatment she received (which for example included sedation) but the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital."

Overall the conclusion, regarding medical treatment to persons mentally incapacitated is as follows:

“89. On this basis, any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1) (as it was said in Austin) “so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose”. In my judgment, what these qualifications mean is in essence that the acute condition of the patient must not have been the result of action which the state wrongly chose to inflict on him and that the administration of the treatment cannot in general include treatment that could not properly be given to a person of sound mind in her condition according to the medical evidence.”

Duncan Lewis Solicitors Public Law Team

Duncan Lewis Solicitors is one of the largest Legal Aid providers in the UK. Our firms aim is to provide an excellent customer service, while giving a “voice to all”. Duncan Lewis are recognised by Legal 500 2016 Edition UK-Wide for our expertise in Court of Protection practice, and Legal 500 2016 edition applauds Duncan Lewis for its specialism in cases that overlap between mental health/capacity issues and deprivation of liberty safeguards. Duncan Lewis boasts a Multi-disciplinary approach in Court of Protection proceedings with collaboration from experts in the Mental Capacity, Mental Health, Community Care, Clinical Negligence and Public Law departments.

Our Court of Protection team is led by the experienced practitioners Toufique Hossain (Director of Public Law), and Peter Wusu (Director of Mental Health).
Duncan Lewis Solicitor would like to take this opportunity to indicate that it would be willing to provide meet and greet opportunities to provide training in relation to the above. We are particularly pleased to offer this service to advocacy services and IMCA/ IMHA organisations. This session can be kept as informal or formal, as the organisation would wish. You will not be obligated in any way to consider these firms services, and any session would be completely free of charge.

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