Tue, 01 Sep 2015
In December 2014, the Chief Coroner issued guidance as the approach to be taken when someone dies at a time when they are deprived of their liberty under the Mental Capacity Act 2005 (MCA 2005). Its effect is yet to be seen.
A person who lacks capacity and is in a hospital or care home or a hospice for the purpose of being given care or treatment may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without authorisation under the statutory scheme otherwise this would be unlawful
The statutory scheme, set out in Schedule A1 to the MCA 2005, provides safeguards via the Deprivation of Liberty Safeguards (DoLS). A deprivation of liberty can only be authorised by two routes: authorisation under Schedule A1 of the MCA 2005 or by order of the Court of Protection (section 4A).
The Department of Health (DH) and Care Quality Commission (CQC) expect applications for DoLS to rise from 13,000 a year to over 100,000 in the coming year. Most cases concern vulnerable people with dementia. Others may have a severe learning disability or acquired brain injury from an accident at work or an RTA etc
Death in DoLS – Chief Coroner’s Guidance
There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that questions have arisen about when someone dies while they are the subject of a DoLS authorisation.
How and when should inquests be undertaken in those circumstances has been a matter of debate for some while. I mentioned the Chief Coroner ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS)’ which sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation (paragraph 33).
There is already a statutory requirement for a coroner to commence an investigation into a person’s death (s1(2)(c) The Coroners and Justice Act 2009 ‘CJA09’) where the coroner has reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but it has been necessary for the Chief Coroner to provide some guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DoL.
If a person dies in state detention then the coroner must hold an inquest and this will quite naturally result in an increase in workload and cost within the system.
A reminder about what ‘in state detention’ means
As explained above, a coroner must commence an investigation into a person’s death where the person died in state detention. This is defined in s48(2) CJA 2009, which states:
‘A 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’
If a duty to investigate arises under section 1, the investigation may not be discontinued if the coroner has reason to suspect that the deceased ‘died while in custody or otherwise in state detention’: section 4(2)(b). In those circumstances the coroner must therefore hold an inquest: section 6.
On one analysis, this means that DoLS fall squarely into the definition of ‘state detention’ and as such, should be investigated by the Coroner.
What is a public authority?
What is a ‘public authority’? All hospitals and care homes in public ownership are public authorities for the purposes of the Human Rights Act (see section (s48(2) CJA 2009 above). Those in private ownership will be if they are carrying out ‘functions of a public nature’, so as to fall within the meaning of ‘public authority’ in section 6(3)(b) of the Human Rights Act 1998.
See also s.73 Care Act 2014 which provides that where care or support is arranged by a local authority, or paid for (directly or indirectly, and in whole or in part) by the authority and that care is provided by a registered care provider to an adult or a carer either in their own home or in care home – then the provider is deemed to be a public authority for the purposes of the 1998 Act.
A reminder of the meaning of deprivation of liberty
A person lacks capacity in relation to a matter if he or she is unable to make a decision for himself or herself in relation to the matter because of impairment (permanent or temporary) of, or a disturbance in the functioning of, the mind or brain: sections 1 and 2, MCA 2005 (diagnostic and functional tests respectively)
Section 64(5) of the MCA 2005, the interpretation section, provides that references in the Act to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the European Convention on Human Rights.
The law in relation to deprivation of liberty was recently reviewed in a landmark decision by the Supreme Court in 2014
In P v Cheshire West and Cheshire Council; P and Q v Surrey County Council  UKSC 19 (a DoLS case) the Supreme Court stated that the purpose of Article 5 was to ensure that people were not deprived of their liberty without proper safeguards and decided (by a majority), that deprivation of liberty arose when the person concerned ‘was under continuous supervision control and was not free to leave’. It did not matter that the patient in hospital or the resident of a care home was content or compliant or voiced no objection (per Lady Hale).
The Chief Coroner it seems holds the view that a deprivation of liberty authorised by DoLS or the court would amount to state detention. In his guidance he refers to Lady Hale’s leading judgment in the Supreme Court that it doesn’t matter how comfortable the individual may be, and how accepting of their care arrangements, they are deprived of their liberty by the state; ‘a gilded cage is still a cage’ and those without capacity should have the same access to human rights as those with access.
Although this approach might bring additional expense and workload, until such time that the High Court deals with this issue, or there is further legislation, the guidance from the Chief Coroner is clear:
54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.
55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.
What type of investigation?
With an increase in the use of DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a coroner. Where the answer is yes, the format that the investigation might take is important. Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a coroner on the papers (paragraph 71) but those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.
Deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest. On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death (paragraphs 61-63.)
Article written by Head of Public Law Group, Nageena Khalique QC.