Charles cooper reviews developments in the reporting of deaths where there was a deprivation of liberty.
The first Chief Coroner’s Annual Report published earlier this year confirmed that guidance has been provided to individual Coroners in relation to Deprivation of Liberty Safeguarding orders, and that it is anticipated the likely requirement to hold an inquest with a jury where a death occurs subject to such an order may result in an increase in the number of inquests with juries.
What is a Deprivation of Liberty?
The Deprivation of Liberty Safeguards (DoLS) are enshrined in the Mental Capacity Act 2005, but the Supreme Court has recently clarified what a deprivation of liberty is in the case of P v Cheshire West and Chester Council & Anor  UKSC 19:
- There is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights when the person (i) is under continuous supervision and control (ii) is not free to leave, and (iii) lacks capacity to consent to these arrangements;
- Factors which are NOT relevant to determining whether there is a deprivation of liberty include (i) the person’s compliance or lack of objection (ii) the reason or purpose behind a particular placement (iii) the relative normality of the placement, given the person’s needs i.e. that the person should not be compared with anyone else in determining whether there is a deprivation of liberty (although young persons aged 16 or 17 should be compared to persons of a similar age and maturity without disabilities);
- A deprivation of liberty can occur in hospitals, care homes, or domestic settings where the State is responsible for imposing such arrangements including a placement in a supported living arrangement in the community.
What is a Deprivation of Liberty Safeguarding order?
A deprivation of liberty for such a person must be authorised under one of the following legal regimes: (i) a deprivation of liberty Standard (Local Authority) or Urgent (NHS Trust/ registered Care Home manager) authorisation where the individual is deprived of their liberty in a hospital or care home; or (ii) an order of the Court of Protection under DoLS in the Mental Capacity Act (or if applicable under the Mental Health Act 1983) where the deprivation of liberty is in a domestic setting or for complex cases in hospital/ care home settings.
How does this affect reporting of deaths to the Coroner?
There is no statutory duty to refer deaths of those who are subject to DoLS orders/ authorisation, however there is a common law duty (which applies to everyone) to refer such deaths where there is reasonable cause to suggest that the person died a violent, unnatural, or sudden death of which the cause is unknown, or where the person died in prison or police custody.
Some Coroners have indicated that they expect Care homes and hospitals who are managing authorities under the Mental Capacity Act DoLS to refer to them all deaths of those in their care who are deprived of their liberty and subject to a relevant authorisation/order.
Supervisory bodies, local authorities and Primary Care Trusts would be well advised to ascertain what their local Coroner’s expectations are in this regard and disseminate that information to all the managing authorities they liaise with.
If in doubt, it would be preferable to report the death than not.