The Chief Coroner has recently received guidance in relation to the Deprivation of Liberty Safeguards (DOLS) (“the Guidance”). By way of background, at present there are in the region of 13,000 DOLS applications per year. The Department of Health and Care Quality Commission expects that number to rise to approximately 100,000 applications per year, particularly in light of the decision in Cheshire West.
The Law Commission has commenced a fundamental review of DOLS provisions in the Mental Capacity Act 2005 and it is anticipated that this report will be published, with a draft Bill to follow in 2017. In the meantime, the Guidance has been published to give Coroners a steer as to what actions to take if a DOLS authorisation had been issued in respect of a deceased at the time of his/her death.
Section 1(2)(c) of the Coroners and Justice Act 2009 (“the 2009 Act”) provides that a Coroner must conduct an investigation into a person’s death if the deceased died whilst in custody or otherwise in state detention. The question therefore is whether a person who has been deprived of their liberty under a DOLS authorisation amounts to being in state detention.
The Guidance accepts that there are two schools of thought. The first is that state detention is defined in Section 48(2) of the 2009 Act as being if a person is compulsorily detained by a public authority within the meaning of Section 6 of the Human Rights Act 1998. Consequently, it would appear that a person whose deprivation of liberty has been authorised under the DOLS regime will only be under state detention if they are in the care of a state facility (e.g. hospital or care home).
However, a second school of thought is that, given that the mechanism by which a person’s liberty may be deprived is through the authority of the state, and that they are being held in detention, effectively, under that authority, the reality is that they have been deprived of their liberty by the authority of the state. Following this process, any person about whom there is a DOLS authorisation is in state detention for the purposes of the 2009 Act.
Ultimately, the Guidance provides that it is a matter for the Coroner to decide which of these opposing views s/he prefers. However, the Chief Coroner has made it clear that he favours the second approach and it is likely that this will be seen to be a highly persuasive argument.
What impact will this have on organisations? Realistically, if a patient subject to a DOLS authorisation dies, the Coroner will be conducting an investigation into the death, whether or not it is deemed to be natural causes or not. The nature of that investigation is a matterfor the Coroner and it may be that, where the cause of death is clearly natural, the matter can be resolved by way of simply conducting and subsequently closing an investigation.
The complications will arise where the death is not natural causes and, therefore, under Section 7 of the 2009 Act, an inquest must be held with a Jury (on the basis that the deceased died in state detention and the death was unnatural).
For organisations who care for patients who are deprived of their liberty (including, therefore, hospitals and care homes) this will potentially create a huge burden due to the number of witnesses called and the length of time
it will take for inquest to be heard. It is important that organisations are aware of patients (residents) who are being deprived of their liberty and so that in the event of that person’s death, when notifying the Coroner, the Coroner’s Officer is made aware of any deprivation of liberty authorisation in place.
It is of note that Coroners are being encouraged to err on the side of caution where an individual is in a Care Home and under a DOLS authorisation but then transferred to hospital. It is likely that, for the purposes of the inquest, if the death is shortly after such a transfer the Coroner will find that the person was, in effect, under a DOLS authorisation.
Finally, even where an authorisation is in doubt, the guidance is clear that Coroners do not have the authority to challenge the validity of a DOLS authorisation.