Inquests in deprivation of liberty cases
The Policing and Crime Act 2017 was granted Royal Assent on 31 January 2017.
Section 178 of the Act will, once in force, amend the Coroners and Justice Act 2009 as follows:
‘But a person is not in state detention at any time when he or she is deprived of liberty under s.4 (a)(3) or s.5 or 4B.’
This will mean that coroners will not be obliged to hold an inquest just because an individual was subject to a DoLS authorisation at the time of their death. It will also mean that they will not be required to sit with a jury when such a death was, or may have been, unnatural. It will not mean an end to all inquests where the deceased was under a DoLS, but it will allow a reduction of inquests for individuals subject to a DoLS, but whose death was expected and apparently natural.
S.178 is not yet in force. In the meantime, in R(Ferreira) v HM Senior Coroner for Inner South London, the Court of Appeal sought to clarify when a patient lacking capacity is in ‘state detention’ for the purpose of an inquest.
MF was a woman with learning difficulties, who was admitted to hospital for pneumonia and heart problems. She was transferred to intensive care, where she was intubated and had a mitt placed around her hand to prevent her removing her tube. Sadly, she did remove the tube and suffered a fatal cardiac arrest.
MF’s family contended that she had been deprived of her liberty in ICU, and was therefore in state detention at the time of her death. The Court of Appeal disagreed.
Firstly, they did not agree MF would meet the acid test in Cheshire West for a deprivation of liberty. She was being treated for a physical illness, and the treatment was that which would have been administered to someone with no mental impairment. Neither was she prevented from leaving; her acute illness was what confined her to her surroundings.
Secondly, they rejected the argument that medical treatment can constitute a deprivation of liberty.
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