Possibility of no further inquests for deaths under DoLS?
A proposed amendment to the Policing and Crime Bill would remove the duty to hold an inquest where the deceased was deprived of liberty under the…
A proposed amendment to the Policing and Crime Bill 2015-2016 would remove a coroner’s duty to hold an inquest where the deceased was deprived of their liberty under the Mental Capacity Act. The new clause means that people who die while under a DoLS authorisation will no longer be deemed to be in "state detention". Therefore coroners will no longer be automatically required to hold an inquest for a person who dies while the subject of a DoLS authorisation.
The amendment was proposed by Baroness Finlay of Llandaff after warnings by the Chief Coroner and complaints from bereaved families that the automatic requirement for inquests had caused distress and created unnecessary pressure on services. The Bill is currently going through the House of Lords and the Government has confirmed its support. Assuming that the Bill as amended is accepted by the House of Commons and enacted in this form, the mandatory requirement for coroners to hold an inquest for people subject to a DoLS authorisation will be removed.
The new clause proposes to amend the meaning of ‘state detention’ in section 48 of the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of the Act when they are deprived of their liberty, under the relevant sections of the Mental Capacity Act 2005. This amendment will thereby remove the duty on coroners to conduct an inquest in all cases where the deceased had a DoLS authorisation in place or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.
By way of background, the ‘Cheshire West’ Supreme Court judgment in March 2014 (Cheshire West and Chester Council v P  UKSC 19,  MHLO 16) effectively lowered the threshold of what constitutes a deprivation of liberty and in doing so, triggered a ten-fold rise in DoLS authorisations.
This in turn led to an increase in mandatory inquests for all those who died whilst the DoLS authorisation remained in place. In 2015 alone, there were 7,183 such deaths. As explained by Baroness Finlay in the House of Lords:
“the vast majority of those deaths were expected, anticipated and accepted by the family and those responsible for care. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried. They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest”.
The Chief Coroner also commented that the rise was one of the “unanticipated and unwanted consequences of statute and case law combined”. The proposed amendment would not, of course, remove the requirement for a coroner to investigate a death under section 1 of the Coroners and Justice Act 2009 wherever the death is violent or unnatural or the cause of death is unknown.
Conclusions and implications
The deaths of those subject to the DoLS regime will no longer be treated as a death in custody and therefore medical practitioners will no longer need to notify such deaths to the coroner. However, medical practitioners should continue to notify any deaths of those subject to a DoLS authorisation in other circumstances where an inquest may be required, such as where the cause of death was unknown or where the death cannot readily be certified as being due to natural causes.
There is also a further implication in terms of the obligation to hold a full jury inquest under Article 2. There is a mandatory requirement to hold a full jury inquest if there is reason to suspect that a death occurred in state detention and was either violent or unnatural or the cause of death was unknown (CJA 2009 s7(2)). The obligation to hold a full jury inquest will therefore no longer apply to the death of a person subject to the DoLS who dies from a violent or unnatural/ unknown death. As stated, such a death will no longer be categorised as a ‘death in custody’ under the regime.