From 3 April 2017, deaths of people subject to the Deprivation of Liberty Safeguards (DoLS) will no longer trigger a mandatory coroner's inquest.
This is because - under an amendment to the rules governing inquests brought about by the Policing & Crime Act 2017 - deaths of those subject to a DoLS authorisation will no longer constitute a death 'in state detention' so there will be no automatic duty on coroners to investigate the case.
This means there will no longer be an automatic requirement to report all DoLS deaths to the coroner, although - as with any death - consideration must still be given in each case to whether any of the other grounds for reporting the death may apply, including if the death was unexpected, unnatural or if the family have issues about the care.
The old rules will continue to apply to deaths which occur before 3 April.
This will come as welcome news for many - including coroners themselves in terms of freeing up valuable resource and the families of individuals subject to a DoLS authorisation who have no issues regarding the care but might otherwise have had to go through the process of a coroner's inquest even where the death was entirely natural and the cause clear.
The Chief Coroner has issued a new guidance note on the changes and how they will work.
In this briefing, we look at the changes and their practical impact.
How will the law be changing?
The law governing inquests (as contained in the Coroners & Justice Act 2009) specifies that there must be an inquest into all deaths in 'state detention'. Ever since the Chief Coroner's guidance note on inquests in DoLS cases stipulated in December 2014 that DoLS cases come within the definition of 'state detention', there has been a requirement to report to the coroner all deaths of people subject to a DoLS authorisation and a duty on the coroner to hold an inquest into such deaths, even where the person has died from natural causes and there are no issues in respect of the care delivered.
However, since the legal threshold for what amounts to a 'deprivation of liberty' was lowered by the Supreme Court Cheshire West case 3 years ago, there has been a large increase in numbers of people subject to a DoLS authorisation and the requirement for all those cases to go to inquest has placed a lot of pressure on the coroner's system and, many would say, has put families through unnecessary further distress.
In order to address this problem, the government has brought in new legislation via the Policing & Crime Act 2017 which - from 3 April 2017 - will amend the definition of a death 'in state detention' to exclude cases where a person is deprived of their liberty under the provisions of the Mental Capacity Act 2005 (including DoLS cases and where a deprivation of liberty has been authorised by the Court of Protection).
For deaths occurring on or after 3 April, there will accordingly be no automatic requirement for the coroner to hold an inquest into a death purely because the person was subject to a DoLS authorisation.
The old rules will continue to apply for deaths taking place prior to 3 April.
Chief Coroner's Guidance Note
To reflect this change, the Chief Coroner has issued a new guidance note about DoLS cases - "Guidance No. 16A Deprivation of Liberty Safeguards (DoLS) - 3rd April 2017 Onwards".
This goes into some detail about what the Deprivation of Liberty Safeguards are and sets out the changes, explaining that - for deaths which take place on or after 3 April - there will be no mandatory/automatic requirement for a coroner's investigation on 'state detention' grounds where the person was subject to a deprivation of liberty authorised under the Mental Capacity Act.
The guidance note emphasises however that, if the person died whilst subject to restrictions amounting to a deprivation of liberty which was not authorised as it should have been, there will still have to be an inquest on 'state detention' grounds.
It also makes clear that - as with any death - there may still need to be an inquest on other grounds, such as where there is reason to suspect that the death was violent or unnatural:
"Of course, where there is a concern about the death, such as a concern about care or treatment before death, or where the medical cause of death is uncertain, the coroner will investigate thoroughly in the usual way."
Issues relating to patients who die whilst in ICU are also covered in the guidance note which explains that - as decided in the recent Court of Appeal case of R (Ferreira) v HM Coroner for Inner London South - ICU patients are not in 'state detention' for the purposes of deciding whether the coroner has to hold an inquest with a jury. This is because the root cause of the person's loss of liberty is their physical condition rather than any restrictions imposed by the hospital. For more detail, see our previous briefing on the Ferreira case.
The new guidance note also acknowledges the finding made as part of the Ferreira judgment that the existing DoLS guidance note (which will continue to apply to deaths pre-dating 3 April) is wrong in stating that a deprivation of liberty has to be authorised before someone can be ‘in state detention’ and will be amended accordingly.
These changes mean that - for DoLS deaths which take place on or after 3 April - there is no longer a requirement to report that death to the coroner solely on the basis that there was a DoLS authorisation in place. As with any death, however, consideration will still have to be given in each case to whether any other grounds for reporting the death apply - e.g. where the death was unexpected or the family have issues with the care.
Although there will be no duty on the coroner to hold an inquest simply because there was a DoLS authorisation in place, an inquest may still be necessary if any of the other inquest triggers apply - e.g. where the coroner has reason to suspect that the cause of death is unknown or the deceased died an unexpected, violent or unnatural death.
This should mean fewer unnecessary inquests in cases where there are no issues about how or why the person died.
What about the impact in terms of whether there should be a jury or Article 2 inquest? Essentially, the position on this will remain unchanged. The requirement for an inquest to be held with a jury where the person died 'in state detention' still only applies where the death is a violent or unnatural one or the cause of death is unknown. In terms of Article 2, the new guidance note makes clear that just because an inquest is concerned with a death ‘in state detention’ does not necessarily mean that it will be an Article 2 inquest - "…in many cases, particularly those where the death is from natural causes, there will be no arguable breach of the state’s general duty to protect life and no other basis for Article 2 engagement".