Death in State Detention?


Recent developments in relation to inquests concerning deaths in care homes and hospitals.

When a person dies while in “state detention” an inquest (a) must be held, even if the cause of death has been established and found to be natural, and (b) the case must be heard by a jury if there is reason to suspect that the death was violent or unnatural, or of unknown cause. (s. 7 Coroners and Justice Act 2009 (“CJA”))

The Chief Coroner’s Guidance No. 16 on Deprivation of Liberty Safeguards, issued December 2014, expressed the view that any person subject to “an authorised deprivation of liberty” under the Deprivation of Liberty Safeguards (DOLS) scheme comes within the CJA’s definition of “state detention”. Consequently, the death of any such person must be the subject of a coronial investigation. However, the Chief Coroner made it clear that this was not a judgment or ruling but simply the expression of an opinion and subject to a decision of the High Court.

The Chief Coroner based his opinion on the decision of the Supreme Court in P v Cheshire West and Cheshire Council; P and Q v Surrey County Council [2014] UKSC 19 (“Cheshire West”), which was concerned with the living arrangements of mentally incapacitated persons. It unanimously held that the difference between a restriction and a deprivation of liberty was one of fact and degree depending on the actual situation of the person concerned, but in cases concerning the placement of mentally disturbed people in hospitals or care homes the test to be applied was whether the person was under continuous supervision and control, and was free to leave or not.

The Court held that by a majority that same test applied even where the person was being confined for a benevolent or beneficial purpose, under court order, in a non-institutional setting which aimed at providing an environment of relative normality and to which the person did not object.

Since the publication of this guidance, the High Court considered the question whether a deceased had been in “state detention” at the time of her death in R (on the application of LF) v HM Senior Coroner for South London [2015] EWHC 2990.

The deceased suffered from Down’s syndrome. She also had a severe learning disability, limited mobility and required 24 hour care. She had been admitted to hospital and after a week had indicated a desire to leave. However, by that stage there was a working diagnosis of pericarditis, pneumonia and possible pulmonary oedema. Some days later and after again having indicated a desire to go home her condition deteriorated to the extent that she was transferred to ICU where she was sedated and intubated. A few days later she died.

The Coroner rejected the argument that the deceased was “in state detention” at the time of her death. The Claimant challenged that conclusion by way of judicial review.

Gross LJ held that the Cheshire West principle was capable of application or extension to patients in some hospital or ICU settings. However, his view was that to treat all patients in such settings for more than a very brief period as being deprived of their liberty, simply because they lacked capacity to consent to a particular stage of treatment, was to involve a wholesale extension of the principle, which would be mechanistic, unwarranted and divorced from the mischief Cheshire West was intended to address.

Any wholesale extension of the Cheshire West principle would also seem to overlook that a person who lacks capacity to consent to a particular treatment can be treated on a best interests basis (s.5 of the Mental Capacity Act 2005) without being deprived of his liberty or compulsorily detained.

The consequences of such an extension of principle in the context of inquests would be enormous: there would be both a large number of wholly unnecessary inquests, and a substantial increase in the number of inquests with a jury.

On the facts of this case it could not be said that the deceased was being compulsorily detained or deprived of her liberty.

Charles J gave a complex and nuanced judgment, upholding the Coroner’s ruling but on different grounds from Gross LJ.  In his view it was wholly artificial to say that at the time of her death the deceased was compulsorily detained. Her freedom of choice had not been overridden in any sense and nothing had been unilaterally imposed on her.

There was no dispute about her need for treatment for her physical disorders. The decisions taken were based on what was thought to be the best ways to promote her best interests in the treatment of these physical disorders. Thus that need, and the effects of her physical disorders and their treatment, meant that she, like anyone else suffering the same physical disorders and having the same treatment, was unable to give an informed consent or leave the hospital.

Interestingly, on 14th January 2016 the Chief Coroner issued revised guidance in which no mention is made of this case. This may be because, although it was published after the decision, it was drafted beforehand. Alternatively, it may be because the Administrative Court was at pains to stress the fact specific nature of the decision.

In any event this case is unlikely to be the last word on the subject. The Law Commission has issued a Consultation Paper on Mental Capacity and the Deprivation of Liberty and is due to report in 2017. Meanwhile coroners and practitioners representing care homes and hospitals can expect to see an increased level of applications for full, jury inquests.