Guidance on Deprivation of Liberty Safeguards (DoLS)
In December 2014 the Chief Coroner issued Guidance on Deprivation of Liberty Safeguards (DoLS).
This guidance concerned persons who die at a time when they are deprived of their liberty under the Mental Capacity Act 2005 (MCA 2005). Under the MCA 2005 a person who lacks capacity and is in a hospital or care home for the purpose of being given care or treatment may be detained in circumstances which amount to deprivation of liberty.
No detention amounting to deprivation of liberty may be permitted without authorisation under the statutory scheme. It would amount otherwise to false imprisonment. The MCA 2005 was amended by the Mental Health Act 2007 to provide a new statutory scheme for persons in hospitals or care homes who were proved on a balance of probabilities to lack capacity. The scheme, set out by the MCA 2005, provides safeguards known as Deprivation of Liberty Safeguards (DoLS).
The Chief Coroner has noted that:
- The use of DoLS in hospitals and care homes was widespread and increasing.
- The Department of Health (DH) and Care Quality Commission (CQC) expect applications for DoLS to rise from 13,000 a year to over 100,000.
- Most cases concern vulnerable people with dementia. Others may have a severe learning disability or acquired brain injury.
The Guidance Concluded
- The Chief Coroner’s present view, subject to a decision of the High Court, is that any person subject to a DoL is “in state detention” for the purposes of the 2009 Act.
- When a person dies the death should be reported to the coroner and the coroner should commence an investigation.
- The person is not “in state detention” for these purposes until the DoL is authorised.
- The investigation cannot be discontinued. There must be an inquest.
- There is no requirement for a jury where the death was from natural causes.
- In many cases the inquest may not be an Article 2 inquest.
- In practice the coroner, through his or her officers, will find out whether a DoLS authorisation is in place, obtain a copy of the authorisation, obtain a medical report, and check with the family that they have no concerns about the circumstances of the death. The outcome of these inquiries, all part of the necessary investigation, will then be placed before the coroner who will conduct a brief public inquest, usually based on the papers.
The person is not ‘in state detention’ for these purposes until the DoL is authorised
This is likely to be challenged based on a case decided in 2015. Where a judge said:
“…. no formal order or authorisation is necessary for there to be a deprivation of liberty under Article 5. “