Greater clarity on the acid test in ICU and other hospital settings
The application of the acid test to patients who are being treated for physical disorders in Intensive Care Units (ICU) and other hospital settings.
In R. (on the application of LF) v HM Coroner for Inner South London  EWHC 2990 (Admin), the Divisional Court had to determine whether a heavily sedated mentally incapacitated patient who had been transferred to the hospital's ICU for life saving treatment was being deprived of her liberty. This required the court to determine whether the "acid test" for the deprivation of liberty identified in the Cheshire West case was satisfied. The court noted that the context of Cheshire West was to ensure that, in circumstances where those who suffer from mental disability are deprived of their liberty for the purpose of care and treatment, such deprivation is periodically reviewed with appropriate judicial oversight. Gross L.J. said that "the question whether there has been a deprivation of liberty in any particular case is fact-sensitive and specific" (para.57 (vii)) In holding that the acid test was not satisfied in this case, his Lordship said at para.76:
"In my respectful view, the notion that Cheshire West requires treating all patients in an ICU (and other hospital settings) for more than a very brief period as subject to a deprivation of liberty provided only that they lacked capacity to consent to the particular stage of treatment, would involve a wholesale extension rather than an application of that authority. Again with respect, any such extension would be mechanistic, unwarranted and divorced from the mischief Cheshire West was seeking to address."
On making a similar finding, Charles J. said at para.145:
"[S]uch an extension of Cheshire West would not draw any distinction between patients with and those without any previous mental incapacity, which furnishes a stark contrast with the issue addressed in Cheshire West. The existence of that contrast shows that the issues at the heart of this case were not under consideration in Cheshire West and so provides a good reason for not applying it as if it sets out a set of statutory principles across very different concrete situations."
His Lordship said that in cases where a patient is in hospital for care and treatment for physical disorders, what is required is a fact sensitive approach which takes into account issues such as "the length of time that the relevant care and treatment has lasted, changes in it and the impact of any pre-existing lack of capacity" (para.150).
Gross L.J. said that, by contrast to the "ordinary" case of a patient with or without prior mental incapacity in an ICU, there could be other situations where the principle of Cheshire West may well be applicable. Examples include instances where there is a serious debate as to proper treatment or active resistance from family members to a particular course of treatment (at para.81).
With regard to the "not free to leave" component of the acid test, both Gross L.J. (at para.87) and Charles J.(at para.151) considered that it was not necessary to ask the question whether the hospital staff would have refused to allow the patient to leave if her sister pressed the issue. In making this finding, the court did not follow the approach advocated in the Law Society's Practical Guide. Gross L.J. said that "it is fanciful in this case to suppose that [the patient's sister] would have sought to remove [the patient] from the hospital while she was undergoing treatment in the ICU and therefore idle to consider what the hospital's response would have been" and that he did not accept that "the hospital's potential response to an unasked question … by itself constitutes or evidences a deprivation of liberty."
This important decision has significant implications not only for patients being treated in ICUs and hospices, but also to patients who have no prior history of mental incapacity who are admitted to hospital for treatment for physical disorders.