Government decision sees DoLS Inquests scrapped
Last month there was welcome news for the health and social care sector when Parliament approved an amendment to the Coroners and Justice Act 2009 (“the Act”) clarifying the legal position on when an inquest will be held following the death of someone who was subject to a Deprivation of Liberty Safeguards (“DoLS”) order.
At present, following guidance issued by the Chief Coroner, a person who dies whilst subject to a DoLS order is considered as having died whilst in “state detention”. Under section 1 of Act, where a person dies whilst in state detention, the Coroner must commence an investigation.
Although the Chief Coroner emphasised that his guidance was no more than an expression of opinion, he nonetheless invited Coroners to take this guidance into account when making judicial decisions. As such, the accepted position is that any person subject to a DoLS is in “state detention” for the purposes of the Act and their death should be the subject of a Coroner investigation.
However, following a number of concerns about this approach, the government has now agreed to amend the definition of state detention under Section 48 of the Act. The amendment, which is included in the Policing and Crime Bill, will see the definition of “state detention” in Section 48 change to expressly state that a person is not in state detention at any time when he or she is deprived of liberty whilst subject to a DoLS order. In practical terms, this will mean that where a person dies subject to a DoLS order, an inquest will no longer always be required.
This amendment followed a campaign led by Baroness Finlay of Llandaff, the independent chair of the National Mental Capacity Forum. It was supported by the Chief Coroner who considered that the current legal position is creating unnecessary work for Coroners as well as creating additional cost for local authorities and considerable distress to bereaved families. Where a person dies in a care home, there is also the additional burden on the care home provider to provide evidence to the Coroner, as well as the burden on any staff required to attend the inquest and give evidence. The procedure can be extremely distressing for all involved. In addition, the DoLS inquests have resulted in an increase in the number of inquests held with a jury, creating further anxiety to families and witnesses. Of 7,183 deaths under DoLS during 2015, Baroness Findlay states 6,760 – or 94% – were found at inquests to be due to natural causes. If we consider that Coroners should only be investigating deaths where there is a reasonable suspicion that the deceased died a violent or unnatural death, or the cause of death is unknown, or if the deceased died while in custody or otherwise in state detention, this highlights the amount of misused costs and resources DoLS related inquests creates. This amendment is therefore a much welcome improvement to the current legal position.
The amendment takes effect on 3 April 2017 and therefore coincides with the publication of the Law Commission’s report following its overall review of the DoLS process. This review was due to be delivered to government by the end of 2016 but due to the complexity of drafting legislation on such an important issue, the Commission had postponed the review until March 2017. The review followed the Supreme Court’s landmark ruling in the Cheshire West case which resulted in a significant increase in DoLS authorisations and the number of inquests being heard. It is anticipated that the amendment to the Act will result in a dramatic drop in the amount of inquests concerning people who were subject to a DoLS order and reduce the burden on both care providers and Coroners.