The report in the HSJ today on the huge discrepancy between the number of deaths in custody reported to the Independent Advisory Panel on Deaths in Custody (1115) and the Ministry of Justice data on deaths of people detained under the Mental Health Act (373), while shocking, is unlikely to come as a surprise to those working in this area.
Coupled with the knowledge that the same mistakes which contribute to the deaths of mental health patients are often repeated and that any lessons learned tend to be only at a local level rather than UK-wide, the picture is even more bleak.
Grieving families are often in no position to know that an Inquest is required by law or that they are likely to eligible for non-means tested legal aid for advice and representation for an Inquest if their loved one died while in mental health detention so even if an inquest does take place, it might not lead to the death being “investigated thoroughly” as the Department Health told the HSJ they should be.
Further legal aid is means tested in relation to legal advice and representation to challenge the failure to hold an Inquest, so it is also easy to see how failures to report deaths to Coroners go unchallenged.
Bereaved families I work with often show me a leaflet they have been given by an NHS Trust aimed at helping the family with their bereavement. The leaflets focus usually on support after a loved one may have committed suicide, but in my experience is commonly provided to families even where families have no reason to believe their loved one intentionally took their own life (a Coroner or jury must find, beyond reasonable doubt, that the deceased intended to take their own life in order to conclude the cause of death was suicide).
Often families are provided with ‘Help is at Hand; Support after someone may have died by suicide', published by Public Health England, and thankfully if they are showing it to me, they already have the benefit of legal advice.
For those simply provided with this, although it is undoubtedly very helpful in parts, it is unclear (at best) regarding the mandatory obligation for an Inquest to be held and I cannot help but wonder whether any inquest lawyers were consulted in the drafting?
On page 17 the leaflet summarises the position as follows:
“In England and Wales, sudden and unexplained deaths are reported to the coroner, an independent judicial office (usually a lawyer or a doctor) appointed by the local authority and approved by the Chief Coroner. The coroner may decide to investigate, in which case the death cannot be registered until this is completed.”
So far so good …. On page 19, the leaflet goes on to explain that:
“If the post-mortem examination can establish the cause of death, a coroner may decide the investigation is complete or that further investigation is unnecessary.”
Finally, on page 21 it sets out when an Inquest is legally required:
“A coroner must hold an inquest if it was not possible to find the cause of death from the post-mortem examination, if the death is found to be unnatural, occurred in prison, police custody or in hospital, or if the coroner thinks there are grounds for further investigation.”
Taking these together, it is perfectly reasonable to conclude that a decision not to hold an Inquest (or even to not refer the death to the Coroner) could lawfully be made where a mental health patient may have taken their own life and even where the Deceased may have been in a psychiatric hospital, but on authorised leave, when the death occurred.
I believe this is incorrect and misleading. The duty on Coroners to hold an Inquest is set out in the Coroners & Justice Act 2009, which imposes a legal obligation to hold an Inquest “if the Coroner has reason to suspect that:
- The deceased died a violent or unnatural death
- The cause of death is unknown; or
- The deceased died while in custody or otherwise in state detention.
So the leaflet:
- Doesn’t explain that there is a duty to hold an Inquest if the death was violent, which can include a suicide;
- Doesn’t explain that if it is unclear whether a Deceased intended to take their own life, the cause of death should be considered unknown;
- and Suggests the death needs to have occurred in custody or hospital for the mandatory duty to be triggered, rather than that the duty is triggered by the individual being within state detention.
We must not forget that the Chief Coroner’s Guidance states that Inquests should also be held where an individual is subject to a Deprivation of Liberty (DoLs) authorisation as this should be considered being in state detention.
I don’t know if this leaflet is in fact part of the problem, but surely ensuring families have access to accurate information and independent advice following the death of a loved one while in the care of the NHS or other public body as the NHS Trusts and other public bodies have access to, may help ensure the Department of Health’s expectation of every death in detention being investigated thoroughly is achieved.