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Keeping up to date with inquest law in a clinical context: can a medical patient be treated as “detained by the state”?

Keeping up to date with inquest law in a clinical context: can a medical patient be treated as “detained by the state”?

By Patricia Hitchcock QC

Those regularly instructed to represent families at inquests will no doubt already be familiar with the valuable resource that is the Chief Coroner and his website, as well as the extremely useful sites of membership organizations like Inquest and AvMA.  If it’s been a little while since your last instructions, and lack of funding makes an open source particularly attractive, the website is to be found at: https://www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner

As well as regularly updated formal guidance, the Chief Coroner’s annual report and a summary of Reports to Prevent Future Deaths, there is a useful summary of recent key cases, with free links to the judgments.  Although the PFD summary has yet to be brought up to date, no doubt due to stringent limits on staff and funding, all PFD reports are uploaded regularly -  although with 51 pages of hospital-related deaths reported since 2013, the search for a specific medical care provider can be cumbersome.

The Key Cases, by contrast, is useful and up to date.  In the clinical sphere, for example, there is the interesting judgment in R (on the application of LF) v HM Senior Coroner for Inner London South & King’s College Hospital NHS Foundation Trust [2015] EWHC 2990 (Admin), decided in late October last year.  Lord Justice Gross and Mr Justice Charles considered whether or not a medical patient with severe learning disabilities who is kept in an NHS medical hospital for medical investigation when she wants to go home can be said to be “in state detention” for the purposes of sections 7 and 48 of the Coroners and Justice Act 2009 (“the CJA”): i.e. following that patient’s death in intensive care, whether or not the Coroner was obliged to empanel a jury, as would be the case, e.g., for a psychiatric patient who died whilst under compulsory MHA section.  

Counsel for the Claimant relied on the 2014 decision of the Supreme Court in Surrey County Council v P  (the “Cheshire West” case)[1], in which the Court held that a person was detained by the State if s/he was under continuous supervision and control and was not free to leave, even if the confinement was for a benevolent purpose and the person did not object to it.  Gross LJ carried out a wide-ranging review both of the relevant domestic and European legislation and of the case law. His Lordship determined that, although the principle of Cheshire West is capable of application to patients in some hospital settings, the “key to the proper scope of ss7(2)(a) and 48(2) of the CJA 2009 and to ensuring coherence  with the Art. 5 jurisdiction lies in an intense focus on context and on the “concrete situation”[2]

On the facts of the case, there was no evidence of a decision actively to detain the deceased against her or her sister the Claimant’s will, and the Coroner was entitled to hold that the state detention provisions of the CJA did not apply.  Charles J arrived at the same decision but by a different route, focusing closely on the meaning of s48(2) of the CJA 2009 and particularly the inclusion of the word “compulsorily” in the definition of detention in this context, and arriving at a more restrictive application of the Act than that favoured by Gross LJ.

Other relevant decisions in 2015 include:


[1] [2014] UKSC 19; [2014] AC 896

[2] Para. 74-5.

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