Requirement to hold an inquest: DoLS no longer classified as state detention from 3 April 2017
The Policing and Crime Act 2017 (PCA) received Royal Assent on 31 January 2017 and comes into force on Monday 3 April 2017.
The legislation deals with a broad range of areas affecting police and crime and makes some changes to police powers under the Mental Health Act 1983, including in relation to places of safety and the length of time someone can be detained under sections 135 and 136 of the Mental Health Act. Significantly, the Act also amends the definition of state detention in section 48 of the Coroners and Justice Act 2009 (CJA).
Section 178 of the PCA is an amendment to section 48 of the CJA which excludes from the definition of state detention, persons who are subject to the Mental Capacity Act 2005 (MCA) Deprivation of Liberty Provisions. This will remove the duty on coroners to conduct an inquest into all cases where the deceased had an authorisation for the deprivation of their liberty in place, either under an MCA Deprivation of Liberty Safeguarding (DoLS), or a Court of Protection Order or the deprivation of their liberty was otherwise authorised by the MCA.
The CJA imposes a duty on coroners 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 s.48 of the 2009 Act when they are compulsorily detained by a public authority. In the past, this has meant that those who died whilst deprived of their liberty under the MCA fell within the definition of state detention and therefore a coroner’s inquest had to be held in every case.
For deaths after 3 April 2017, there will no longer now be an automatic requirement to hold an inquest. Where an individual deprived of their liberty under the MCA died before 3 April 2017, they will have died ‘in state detention’ so the death must be reported to the coroner and an inquest held.
Deaths will 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.
The Chief Coroner has issued new ‘Guidance on Deprivation of Liberty Safeguards: Guidance 16A’ which can be viewed below. Guidance previously published in 2014 on DoLS deaths will no longer apply for deaths on or after 3 April 2017.
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