Regular readers of this blog will know that we have written extensively about recent developments concerning DoLS: the Safeguards which protect individuals detained in a care home or hospital for the purpose of giving them care and treatment, but who lack the capacity to consent to that treatment or detention. In March 2014, the Supreme Court clarified that an individual without capacity is deprived of their liberty in circumstances where they are under the ‘continuous supervision and control [of their carers] and are not free to leave.’
Death in DoLS – Chief Coroner’s Guidance
There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that more departments are supporting someone subject to a DoLs authorisation and require guidance about the services they provide.
One of the issues currently being discussed is what happens when someone dies while they are the subject of a DoLS authorisation. How and when should inquests be undertaken in those circumstances and how should DoLS be used in a hospice environment?
Some of these questions have been answered by the Chief Coroner in ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS).’ Found here.
The Guidance sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation.
There was already a statutory requirement for a coroner to commence an investigation into a person’s death where the coroner had reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but the Chief Coroner provides guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DOL.
The guidance from the Chief Coroner is clear:
54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.
55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.
What type of investigation?
With an increase in DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a Coroner? Where the answer is yes, the format that the investigation might take is important.
Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a Coroner on the papers and only those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.
Only the deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest.
On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death.
Many deaths in homes or hospitals cannot be viewed as ‘natural.’ Some deaths may appear to be natural, but are actually the result of a failure by the state to take measures within the scope of its powers to avoid a death where they knew or ought to have known that there was a real or immediate risk to the life of the deceased. As the volume of cases will inevitably increase, who will spot these deaths?
The decision of Cheshire West has already led to an increase in paperwork for Local Authorities, health authorities, the Court of Protection and now for Coroners. If these organisations become so overwhelmed with paperwork, will they notice the cases that need proper scrutiny? Further, won’t all of these paper reviews divert necessary resources from those cases that really do go wrong and would benefit from the detailed, independent scrutiny of a jury?
DoLS in hospices
The nature of the service provided in hospices means that the instances of deaths will be huge, increasing further the impact on the work of a coroner.
Why might this be an issue? When would someone receiving end of life care need to be made the subject of a DoLS authorisation?
On a strict application of the MCA 2005, and by analogy to the Court of Protection’s treatment of individuals with Persistent Vegetative State and Minimally Conscious State in relation to incapacity, when an individual is unconscious there is arguably an impairment or disturbance of the functioning of the mind or brain (s2 MCA 2005). The diagnostic test is fulfilled and when looking at the functional test, this is fulfilled because the patient is unconscious and they are unable to communicate a decision about where they want to live and receive care. It is likely that the care they are receiving and the environment they are receiving it in, is overwhelmingly in their best interests, necessary and proportionate and as such, meets the key requirements for a DoL needing authorisation.
Since there is limited state involvement in a hospice, will a DoL be attributable to the state and require authorisation?
Current legislation ensures that a private entity, if carrying out functions of the state (ie providing care funded by the state), will be caught by the DOLS and will need to obtain authorisation for any deprivation of liberty. Section 64(6) of the MCA 2005 confirms that it does not matter whether a person is deprived of their liberty by a public authority or not for the scheme to apply. It is therefore safer for a hospice as Managing Authority to ensure that the detention is authorised.
It has been suggested that if a patient goes into a hospice by choice (which is usually the case), they could sign a form to confirm that they give their consent and this might somehow avoid the later implication of a DOLS authorisation once capacity has been lost. I have concerns with that on a legal basis, as capacity is time and decision specific. There is no legal mechanism where a DoLS authorisation can be opted out of. It is a framework to authorise existing restrictions on liberty which amount to a DOL, and there is no ‘Advance Decision’ alternative to deal with this.
Is this another issue that might require legislation?
The Supreme Court decision has already led to an escalation of assessments and increased pressure on already depleted resources in Local Authorities and courts. Without a solution to DoLS in hospices this could be set to rise even higher, but concerns have been raised by individuals working with families in hospices as they really do not want to be troubled by Best Interests Assessors and DoLS documentation at a time when they want to be spending time with dying family members. This is an incredibly pertinent point.
It doesn’t always make sense to insist on the use of a framework which is there to support and protect the human rights of those who are living, for those who have gone to a peaceful and calm place to die. Does this mean picking and choosing when fundamental human rights should apply, and to whom? A tricky balance to achieve.
To discuss any of these issues please contact Jess Flanagan or a member of our Court of Protection team.