Client Alert: DoLS and inquests in the care sector

The way in which deprivation of liberty safeguards (DoLS) inquests are dealt with is changing from 3 April 2017. 

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. The following has been added: (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 means that 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.

This change was prompted by the large number of DoLS applications and associated inquests. Baroness Finlay, the independent chair of the National Mental Capacity Forum recently introduced this provision in the House of Lords saying that “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.”  

It is hoped that this change will reduce the number of DoLS inquests and speed up the coronial process for other inquests.