Following our blog last week in relation to death under DOLS ( Deprivation of Liberty Safeguards) no longer leading to a compulsory inquest, the Chief Coroner's Guidance has been released. The guidance concerns persons who have died at a time when they are deprived of their liberty under the Mental Capacity Act 2005. Under the MCA 2005, a person in a hospital or care home, who lacks capacity for the purpose of being provided with care and treatment, may be lawfully detained in circumstances which amount to a deprivation of liberty.
In order to decide whether a coroner must investigate the death of a person who was subject to DOLS, it is necessary to consider the relevant provisions of The Coroner and Justice Act 2009 - has the person died in state detention?
State detention is defined as 'person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998'.
The Chief Coroner previously favoured the following view that an inquest is required for a person subject to DOLS:
A person subject to DOLS falls within CJA 2009's definition of "in state detention". However quiet and comfortable, in a care home a person may be, they are still deprived of their liberty by the local authority and are being held in detention.
This was before the new guidance was introduced that a person subject to DOLS in no longer regarded as being "in state detention". The change was brought about by the Policing and Crime Act 2017 and will take effect from 3 April 2017.
The change has come due to a significant increase in the number of applications for DOLS and the granting of such application, meant that the number of coroners' inquests have increased. It was that the vast majority of these case were ones where the death would not otherwise have required a coroner's inquest. Not only were there concerns to the family members of those who had died, but also it was a use of resources at a time of acute financial and manpower pressures.
With a death occurring on or after 3 April 2017, a coroner's inquest will not necessarily take place. The death should be treated like any other death outside the context of state detention. However, where there is concern about the death regarding concerns about care or treatment before the death, or where the medical cause of death is uncertain, the coroner will investigate thoroughly in the usual way.
If you wish to read the full guidance, please click here.
Should you want any further information or advice in relation to this, please do not hesitate to contact our Mental Capacity Team on 01872 272 457.