On 3 April 2017, the Policing and Crime Act 2017 (the 2017 Act) came into force. Section 178 of the 2017 Act tightened the definition of ‘state detention’ found in section 48 of the Coroners and Justice Act 2009 (the 2009 Act). Specifically, at a time when a person is deprived of his/her liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005, s/he is not considered to be in state detention for the purposes of the 2009 Act.
This is a welcome amendment. Prior to this, and following the publication of the Chief Coroner’s Guidance No 16, all patients who were subject to a deprivation of liberty safeguard (DoLS) authorisation were considered to be in ‘state detention’. Consequently, the coroner had a duty to hold an inquest into the death of every patient who was being deprived of his/her liberty (including those known to have died from natural causes), with a jury being empaneled where the cause of death was unknown and/or unnatural.
The Chief Coroner’s Guidance No16 was criticised in the recent case of R(Ferreira) -v- HM Senior Coroner for Inner South London  EWCA Civ 31 - where the court was asked to consider whether a person who died whilst in the intensive care unit of a hospital was in fact being deprived of her liberty. However, the position remained that, if a person was being de facto deprived of his/her liberty at the time of his/her death, the coroner had a duty to hold an inquest (with a jury if the cause of death was unnatural/unknown).
The current position under the 2017 Act is as follows: if a person is being deprived of his/her liberty and that deprivation is appropriately authorised under the DoLS or by the Court of Protection, the coroner is only required to hold an inquest into the death if the cause of death was violent or unnatural. Additionally, the simple fact of the deceased being deprived of his/her liberty at the time of his/her death will not give rise to a statutory requirement to empanel a jury. In view of the revised position, the chief coroner has issued new guidance: Chief Coroner’s Guidance No 16A.
However, there is a rub. Section 178 applies only to those patients for whom a DoLS authorisation was in place or if the deprivation is authorised by the Court of Protection. If a patient were in fact being deprived of his/her liberty (as was being alleged in the Ferreira case, as before) but no authorisation had been granted, that patient would be considered to be under state detention at the time of his/her death and the coroner would have a duty to hold an inquest (with a jury if the cause of death was unnatural/unknown).
It is important, therefore, that all staff are aware of circumstances which may give rise to a deprivation of liberty and, having identified those circumstances, steps are made to seek appropriate authorisation in a timely manner, either through the DoLS process, or by the authorisation of the Court of Protection.
The key questions for professionals, as identified in Cheshire West and Cheshire Council -v- P  UKSC 19 are:
1. is the person subject to continuous supervision and control; and
2. is the person free to leave?
The additional relevant circumstances identified in the Ferreira case are:
1. Are the restrictions on a person being able to leave due to the patient’s physical condition, or restrictions being imposed by the hospital?
2. Is the treatment being given to the patient without capacity materially different to that which would be given to a patient with capacity in similar circumstances?
3. Are the restrictions in place for the purposes of administering life-saving medical treatment?
It is important that all staff are reminded that the DoLS regime should be considered for all patients who are under restrictions, even if those restrictions are considered to be due to physical constraints, rather than hospital imposed restrictions. Where there is any doubt, assistance should be sought from the healthcare organisation’s legal department.