Police and Crime Act 2017 - Deprivation of Liberty Authorisation (DoLs) no longer classified as state detention from 3rd April 2017

Police and Crime Act 2017 - Deprivation of Liberty Authorisation (DoLs) no longer classified as state detention from 3rd April 2017

Section 178: Coroners’ investigations into deaths: meaning of “state detention” (applies to England and Wales) Provisions commencing on 3rd April 2017 57. This section amends section 48 of the Coroners and Justice Act 2009 (“the 2009 Act”) by excluding from the definition of state detention persons who are subject to Mental Capacity Act 2005 (“MCA”) deprivation of liberty provisions. The effect of this is to remove the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under an MCA Deprivation of Liberty Safeguard (“DoLS”) or a Court of Protection Order or the deprivation of their liberty was otherwise authorised by the MCA.

 

58. Under section 1 of the 2009 Act, coroners have a duty to undertake an investigation, including an inquest, into a person’s death when they have reason to suspect that the deceased died “while in custody or otherwise in state detention.” A person is in state detention under section 48 of the 2009 Act when they are compulsorily detained by a public authority. Under the MCA a person who lacks capacity may be deprived of their liberty for the purposes of care or treatment by the authority of a Local Authority or the Court of Protection in circumstances which amount to detention.  This has meant that those who died whilst deprived of their liberty under the MCA fell within the definition of state detention and a coroner’s inquest had to be held in every case even where the deceased died of natural causes and the death was expected. 

 

59. The change that section 178 makes will mean that when a person deprived of their liberty under the MCA dies on or after 3rd April 2017, there is no longer an automatic requirement to hold an inquest.  Where a person deprived of their liberty under the MCA dies before 3rd April 2017 they will have died “in state detention” and so the death must be reported to the coroner and an inquest held. Where a person is deprived of their liberty by a public authority without the authority of the MCA then they will continue to fall within the definition of “in state detention”. 

 

60. Coroners will continue to have a duty to conduct an investigation into the death of any person who was in custody or otherwise in state detention, or whose death was violent, unnatural, or of unknown cause. Therefore, when a person dies whilst deprived of their liberty under the MCA on or after 3rd April, the death should still be referred in the normal way to the coroner where there are any concerns about the cause of death including where there is a concern that a failure of care may have contributed to the death.  

 

61. Registrars must still refer the death of a person deprived of their liberty to the coroner if there is any concern about the cause of death.  Any other person, such as a family member of the deceased, as well as health and care workers should also report the death to the coroner where there are any concerns.  

 

62. The Chief Coroner has published guidance for doctors in reporting deaths to coroners.  This guidance is available here. The Chief Coroner published guidance in 2014 to coroners on DoLS deaths with regards to their duties to undertake inquests in deaths “in custody and otherwise in state detention”. The guidance in its current form will no longer apply for deaths on or after 3 April 2017.