The Deprivation of Liberty Safeguards and inquests - a change in the law

As a result of a new legislative provision, the law on when inquests are required for people lawfully deprived of their liberty either by the DoLS or the Court of Protection has changed, with effect from 3 April 2017. John Glendening, Robin Constable and Ken Slade report.

In detail

Section 178 of the Policing and Crime Act 2017 inserted a new subsection 2A into section 48 of the Coroners and Justice Act 2009. Subsection 2 deals with state detention and the new subsection 2A states “But a person is not in state detention at any time when he or she is deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005.”

The effect of this is that anyone who dies when lawfully deprived of their liberty either by the DoLS or by the Court of Protection will not automatically be subject to a coroner’s investigation, whilst healthcare professionals are also no longer required to notify deaths in those situations to the coroner, unless the death was unnatural, violent, or the cause was unknown.

The new provision is a consequence of he Supreme Court’s judgment in P v Cheshire West [2014] UKSC 19, in which the court found that all individuals under continuous supervision and control and lacking the freedom to leave the place they live are being deprived of their liberty, and that deprivation must be authorised by the Court of Protection or by the DoLS, which are set out in the Mental Capacity Act 2005. The effect of the Cheshire West ruling was that many people living in care homes and hospitals were classified as being deprived of their liberty. Not surprisingly, this lead to a ten-fold increase in DoLS applications since 2014 - from 11,887 in 2012/13 to 122,775 in 2014/15 which in turn lead to an increase in mandatory inquests as those who died in such circumstances were considered to have died in state detention - there were 7,183 such deaths in 2015. Similarly, for many patients living in the community under supported living arrangements, an application to the Court of Protection for authorisation was necessary.

This provision was introduced in the House of Lords as an amendment moved by Baroness Finlay, the independent chair of the National Mental Capacity Forum who said:

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.

Baroness Finlay argued that it was also “not a good use of coroners” to investigate such cases.

Conclusions and implications

There are two significant effects of the new statutory provision.

Firstly, 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 professionals are no longer required to notify such deaths to the coroner, although they should continue to do so, as stated above, if the death was unnatural, violent or the cause unknown.

Secondly, a jury inquest will not be mandatory for the death of an individual deprived of their liberty by the Court of Protection or the DoLS, since the death will no longer be characterised as a death in custody. Hopefully, this new provision will help to deal with the significant increase in mandatory inquests since the Supreme Court judgment in Cheshire West. It is also worth noting that the Court of Appeal recently found in the Ferreira case (R (Ferreira) v HM Senior Coroner for Inner South London & Ors [2017] EWCA Civ 31) that a death in a hospital intensive care unit was not a death in state detention for the purpose of the Coroners and Justice Act, hence there was no requirement for an inquest with a jury. Read our client update on the Court of Appeal’s decision here.

John Glendening is a consultant, Robin Constable is a solicitor and Ken Slade is a Principal Professional Support Lawyer at Weightmans. John can be reached on 0116 242 8930 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it., Robin can be contacted on 01162428941 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it. and Ken Slade can be reached on 0151 242 7953 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..