News Professional Discipline 21st Mar 2017

Deprivation of Liberty – the saga continues

Section 178 of the Policing and Crime Act 2017 inserts a new subsection into section 48 of the Coroners and Justice Act 2009, which defines state detention, adding the following:

(2A) But a person is not in state detention at any time when he or she is deprived of liberty under section 4 or 4B of the Mental Capacity Act 2005.

This section comes into force on 3 April 2017.

The provision is a reaction to the Supreme Court’s judgment in P v Cheshire West [2014] UKSC 19, in which the Court held that all individuals who are under continuous supervision and control and lack the freedom to leave the place they live are being deprived of their liberty, and the deprivation must be authorised by the Court of Protection of by the procedures known as the deprivation of liberty safeguards [‘DoLS’] set out in the Mental Capacity Act 2005. The effect is that very many people living in care homes and supporting living arrangements are now classified as having been deprived of their liberty.

This has led, unsurprisingly, to a ten-fold increase in DoLS applications since 2014 – from 11,887 in 2012/13 to 122,775 in 2014/15. This in turn led to an increase in mandatory inquests as those who died in such circumstances were considered to have died in state detention – there were 7,183 such deaths in 2015.

Hence the need for this provision, which was introduced in the House of Lords as an amendment moved by Baroness Finlay, the independent chair of the National Mental Capacity Forum. She explained the consequences of the Cheshire West judgment and said:

The vast majority of those [deaths] were expected, anticipated and accepted by the family and those responsible for care. These were not deaths that came as a surprise to anyone. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried… They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest. In 2015 the average time for inquests was 20 weeks.

She argued that it was also “not a good use of coroners” to investigate such cases.

There are two key effects of this provision.

First, those who die when lawfully deprived of their liberty by the Court of Protection or by the DoLS will not automatically become the subject of a coroner’s investigation, and healthcare practitioners are no longer required to notify such deaths to the coroner. However, if the death was unnatural, violent or the cause unknown then practitioners should continue to notify the coroner.

Second, a jury inqest will not be mandatory for the death of an individual deprived of their liberty by the Court of Protection or DoLS as the death will no longer be characterised as a death in custody.

It is to be hoped that this provision will address the unnecessary increase in mandatory inquests since the Cheshire West judgment.

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