[Note – the Court of Appeal in Ferreira held in January 2017 that this guidance is incorrect in Ferreira held that paragraph 66 of this guidance is wrong in law in that it is suggests that state detention can only arise where a DOLS authorisation is in place. It is not at present clear whether further guidance will be issued. The text of this post is otherwise unchanged (save for the link to the slightly revised guidance issued in January 2016) from that published in December 2014; it will be revised in due course if the guidance is substantially revised].
The Chief Coroner issued Guidance on 5 December 2014 [note, revised in January 2016, the link now going to the revised guidance, the text of this post otherwise remaining unchanged] concerning those who die when subject to a DOLS authorisation or a judicial authorisation of the deprivation of their liberty under the MCA 2005.
Whilst the Chief Coroner emphasises that it is a matter for each coroner (and subject to any subsequent ruling of the High Court), the Guidance is intended to give coroners a ‘steer’ on the application of DOLS in the context of their work.
To that end, the Guidance sets out an outline of the key provisions of the MCA and of the DOLS regime before turning to the specific coronial context. Key points to emphasise from this part of the Guidance are that:
1. The validity of a DOLS authorisation cannot be challenged before a coroner (paragraph 33).
2. Although the Chief Coroner acknowledges that there are two opposing views as to whether a person dying subject to a DOLS authorisation (or a relevant COP order) is in ‘state detention’ for purposes of s.1 and 4(2)(b) Coroners and Justice Act 2009, he favours the second view, such that it is his opinion that:
“on the law as it now stands, the death of a person subject to a DoL should be the subject of a coroner investigation because that person was in state detention within the meaning of the Coroners and Justice Act 2009.” (paragraph 45)
In reaching this view, he notes that it is in line with the Explanatory Notes to the Coroners and Justice Act, and answers given by the Government during the passage of the MHA 2007.
3. As regards the question of whether a death in a private care home is a death in state detention, the Guidance suggests that the ultimate question is whether the detention by the managing authority in the case of a private care home a public function? As the Chief Coroner notes: “The answer to that question may well be Yes. The detention is a public function because of the detailed statutory scheme which permits it. The exercise of powers of compulsory detention could therefore be considered a public function for the purposes of section 6 of the Human Rights Act” (paragraph 59)
4. Where an inquest is required, the Guidance suggests that in many cases there will be no need for a jury inquest, nor will there necessarily be the need for an Article 2 ‘enhanced’ inquest, unless the death is not from natural causes or the fact of death under DOLS may be a relevant factor in the cause of death (paragraphs 60 and 63)
5. The Chief Coroner does not consider that a person is to be considered under state detention until the deprivation of liberty is authorised (paragraph 66
6. Where the authorisation relates to a care home and the person is removed to the hospital and dies there (or in transit), coroners should “err on the side of caution in deciding that the DoL may extend from the care home to the hospital in cases of medical necessity and therefore an investigation must be commenced. Even if the DoL is strictly place-specific (see paragraphs 25-26, Schedule A1), the law of necessity may allow the hospital to ‘detain’ the person, therefore an inquest would be necessary” (paragraph 67)
7. “In many cases of this kind which are uncontroversial the inquest may be a ‘paper’ inquest, decided in open court but on the papers without witnesses having to attend. Intelligent analysis of relevant information (without the need for a post-mortem examination) may be the best approach. Bereaved families should have all of this explained to them in advance” (paragraph 71)
It is undoubtedly helpful that the Chief Coroner has issued this guidance in this very thorny area. I would respectfully agree with his construction of the Coroners and Justice Act 2009 as regards whether a death is ‘in state detention,’ although this undoubtedly has significant consequences for families of those who have died ‘under DOLS’ in entirely benign environments.
I would also entirely agree with the Chief Coroner that it is very likely that a death in a private care home of a person subject to an authorisation under Sch A1 (or an order of the CoP) should be treated as a death in state detention – and I note in this regard that the question will be much easier to answer when s.73 Care Act 2014 comes into effect).
I must, though, enter a few notes of caution as to the Guidance. The first is that paragraph 2 is, frankly, wrong in suggesting that a person detained without authority under the scheme of the MCA 2005 would necessarily be falsely imprisoned. False imprisonment is a common law tort which is not co-terminous with unlawful deprivation of liberty. A person could therefore be subject to an unlawful deprivation of liberty (a statutory tort for which declarations or damages can be awarded under the Human Rights Act 1998) without necessarily being falsely imprisoned at common law.
The second is that paragraph 67 is to my mind, somewhat problematic. I can see entirely why the Chief Coroner would wish to make sure that individuals are not considered to have been discharged from state detention merely by being transferred from a care home to a hospital, but the mechanism that he adopts in the paragraph does not, with respect, seem to me entirely to work. A DOLS authorisation may well provide authority to an organisation to transfer a person from the care home named in the authorisation to a hospital (nb, not to the care home in the first place). However, I do not see how it can properly be said to address in any way the position in the hospital. The individual might well be deprived of their liberty in the hospital – which would have the consequence that they should be the subject of an authorisation in that hospital if they do not have the capacity to consent. However, if, as the Chief Coroner says in the preceding paragraph, a death is only to be considered to be in state detention when the deprivation of liberty is authorised, the logical consequence of this is that a patient who dies when they have been transferred to hospital, there deprived of their liberty, but who has not been made the subject of an authorisation, would not be in state detention. It may be that a second iteration of the guidance in due course will address this conundrum.
I would also hope that the second iteration of the guidance addresses precisely what is meant at paragraph 67 by the ability of the hospital to rely upon necessity to ‘detain’ the person. This ability is very limited indeed (as made clear by the decision in HL v UK) and, to my mind, only really arises in the limited context of steps taken for the immediate purpose of securing against a risk of life and limb to others – which I am sure is not what the Chief Coroner has in mind.