Deprivation of Liberty Safeguards Inquests – Change in the Law

Related Sector: Health & Social Care

Under law reforms that came into force on the 3rd April 2017, Coroners will no longer be required to hold an inquest automatically if a person dies whilst subject to a Deprivation of Liberty Authorisation.

The Context

The Deprivation of Liberty Safeguards introduced a duty for care homes and hospitals to notify the Coroner if a person died whilst subject to a Deprivation of Liberty Authorisation. In December 2014 the Chief Coroner of England and Wales issued official guidance.

The guidance stated

“on the law as it now stands, the death of a person subject to DoL Safeguards should be the subject of a coroner investigation because that person was “in state detention” within the meaning of the Coroner’s and Justice Act 2009”.
This requirement has had a huge and largely negative impact on families due to the distress they have suffered in finding out that not only has their loved one passed away, but there has to be an inquest into their death. Although care homes and hospitals have a duty to inform families during the consultation process of this requirement, often they did not, and the news often came as a complete shock with stories of the police “guarding” bodies as death certificates had not been issued due to a backlog of cases at the Coroner’s office.
The statute plus the interpretation of the Supreme Court’s landmark Cheshire West ruling which lowered the threshold of what amounts to a deprivation of liberty created a 10 fold increase in England and 16 fold increase in Wales in the numbers of people subject to the Safeguards and the Chief Coroner stated that this was one of the “unanticipated and unwanted consequences”.

The changes

The Policing and Crime Act 2017 (s178) makes significant changes to Coroner’s investigations into deaths occurring on or after 3rd April 2017 in deprivation of liberty cases. The changes mean that people who die on or after this date, in care homes and hospitals subject to the Deprivation of Liberty Safeguards or subject to a Court of Protection Order are no longer classed as having died “in state detention” for the purposes of the 2009 Act.

Their death no longer triggers an automatic requirement for an inquest, it need only be reported to the Coroner where one or more of the other requisite conditions are met.

Key points to remember:

• The Chief Coroner has issued new guidance No 16A dated 27th March 2017. The Guidance takes into account the changes brought into effect by the enactment of the Policing and Crime Act 2017 and also deals with the decision of the Court of Appeal (Civil Division) in R (on the application of Ferreira) and HM Senior Coroner for Inner London South, King’s College Hospital NHS Foundation Trust, the Intensive Care Society and the Faculty of Intensive Care Medicine and Secretary of State for Health and Secretary of State for Justice[2017] EWCA Civ 31. (Ferreira).
  
  
• For any deaths which occurred before 3rd April 2017, prior to the implementation of the Policing and Crime Act 2017, then the old law and guidance still stand so an inquest must be held, any deaths on or after 3rd April 2017 the new law and new guidance apply.
  
  
• The new guidance states it is the date of death not date of notification of death to the coroner that is the relevant date.
  
  
• Coroners will still investigate where there is a concern about the death, for example such as a concern about care or treatment before death, or where the medical cause of death is uncertain.
  
  
• Where a person is deprived of their liberty by a public authority without an authorisation under either the Deprivation of Liberty Safeguards or through the Court of Protection then they will still be considered to be “in state detention” and an inquest must be held.

Sue Inker
Bond Solon Subject Matter Expert and Adult Social Care Trainer