Legal Update – deprivation of liberty: Government dispenses with the requirement for Coroners to hold an investigation into all deaths under DoLS
The recently implemented Policing and Crime Act 2017 (PCA 2017) has removed the requirement for a coroner to hold an investigation or inquest into the death of every person who dies while subject to a Deprivation of Liberty Safeguards (DoLS). This change applies to deaths occurring on or after 3 April 2017.
Prior to this change in the law, persons who died under a DoLS were regarded as being in ‘state detention’ and as such the Coroners and Justice Act 2009 (CJA 2009) required that a coroner’s investigation be held in each and every case, irrespective of whether the cause of death was a natural one.
Following the Supreme Court decision in Cheshire West (which substantially broadened the definition of a ‘deprivation of liberty’) the number of people requiring DoLS authorisations increased exponentially. This lead to a dramatic increase in the number of deaths under DoLS being referred to coroners who consequently found themselves overwhelmed by the increased administrative burden. In addition, many more bereaved families were put through the distress of having their loved-one’s death referred to the coroner when in the vast majority of cases this would have been unnecessary had it not been for the existence of a DoLS.
The PCA 2017 has amended the definition of ‘state detention’ within CJA 2009 so that it no longer includes persons subject to DoLS. This change in the law applies to deaths occurring on or after 3 April 2017. The old law will continue to apply to deaths occurring before this date even if the death is not reported to the coroner until after 3 April 2017.
It remains the law that where the cause of death is unknown or is suspected to be violent or unnatural, of if the deceased died while in prison or police custody, a referral to the coroner will still be required regardless of whether the deceased was subject to a DoLS or not.
The Chief Coroner has issued new guidance to accompany this change in the law:-
Addressing criticism of the old guidance by the Court of Appeal in Ferreira, the new guidance confirms that where a person dies while subject to restrictions amounting to ‘state detention’ in a hospital or care home without a DoLS authorisation in force, that death will still fall within the definition of ‘state detention’ for the purpose of CJA 2009 and as such will require a coroner’s investigation.
If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk
