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Death and Deprivation of Liberty Safeguards

Article 2 of the European Convention on Human Rights is known as ‘the right to life’. Its main practical application is not so much in relation to a duty on the state to preserve life but, rather, in relation to the state’s duty to investigate when a citizen dies in the care or detention of the state. The idea being that, if a person is in the care or custody of the state and dies during that period, then the state must investigate why the death occurred – with a view to implementing changes which would reduce the risks of further such deaths occurring. It stands to reason that, if a person is in state custody then they ought not to die, other than by way of natural causes. The application of such a duty on the state forms part of the safeguards for people in custody. After all, historically, many people have died in such circumstances and it has since been established that the death has come about by way of neglect or abuse.

The above has been fairly uncontroversial, despite the debate about the application of the Convention generally (the most contentious cases concerning Article 8, not Article 2). Most people would accept that it is appropriate that a detailed investigation be carried out when a person dies in police, prison or psychiatric hospital detention. Should the person die in a nursing home, medical ward of the local hospital or a Hospice (especially a Hospice), however, the reaction is likely to be very different. The consensus would no doubt be that, in those circumstances, especially if the person is elderly and/or suffering all kinds of medical complications and certainly where they are in a Hospice (which is of course designed to provide care prior to death), then a formal state investigation would not only be over-the-top but positively intrusive and inappropriate.

The latter scenario is not, however, uncommon for people deemed to lack the capacity to decide where they are accommodated for the purposes of care and treatment. Since the landmark decision of the Supreme Court in Cheshire West, in early 2014, many thousands of people have been considered to be deprived of their liberty by the state – despite the fact that they are not detained in an institution that the public would readily recognise as state detention, such as a prison or secure psychiatric unit. It may even be the case that the person is considered deprived of their liberty in their own home. The reason for this is that the definition of when a person is deprived of their liberty is now very broad. Essentially, a person is so deprived if they are: under constant supervision and control and are not free to leave.

It follows that if a person is deprived of their liberty then their Article 5 right to liberty dictates that there must be a lawful process by which this occurs. The process used for people on medical wards; hospices and nursing homes is what is called the Deprivation of Liberty Safeguards (DoLs) process (a scheme inserted into the Mental Capacity Act 2005 and operating since the spring of 2009). The process for people in settings such as their own home, supported living or an educational setting, for example, involves the relevant local authority making an application for the Court of Protection to authorise the deprivation of liberty. Either way, the detention is then lawful as it has been effected by way of a lawful process and the person subject to it has a right of challenge.

So far, so good, but then the question arose: if a person dies when subject to such a process, have they not died in the care of the state and does not Article 2 then apply? This was the question the Chief Coroner posed to himself and answered in his Guidance Note to all Coroners (published a few months after Cheshire West and recently revised). In this Guidance Note (number 16), His Honour Judge Peter Thornton QC answers in the affirmative: such a scenario does amount to state detention. Given that, Article 2 is engaged and an investigation must be carried out by the state. The way in which such an investigation is carried out in this country is, of course, by way of a Coroner’s investigation.

Whilst one can understand the logic followed in this Note and it certainly makes sense to lawyers, it is has caused a lot of controversy amongst relatives whose family member has died (in entirely expected circumstances) and they are then informed that there is to be an investigation due to the state having detained their relative. Letters to MP’s have followed and those MP’s have then raised their concerns with government and such concerns have been raised in Parliament. We know this from government statements justifying their plans to replace the DoLs scheme – due to concerns such as this one. The Law Commission was asked by the Department of Health to come up with a replacement scheme and much of the latter part of 2015 was spent in a consultation exercise which put forward an alternative. The alternative was met with a complete lack of enthusiasm, however, and so no replacement to the DoLs scheme will be introduced in the near future.*

We are, therefore, stuck with a situation which makes perfect sense to lawyers (applying Articles 2 and 5 and the Coroners and Justice Act 2009), but which is confusing for many care home staff and upsetting for many members of the public – particularly those who seek a quick burial due to religious requirements. It was perhaps one of the unintended consequences of Cheshire West. A decision which, whilst in many ways laudable, has controversially brought detention out of the usual locked doors and high walls and brought it into more therapeutic settings – unfamiliar with notions such as deprivation of liberty. In addition, the impact on local authorities has been enormous given they carry the financial burden of the process referred to above. There is an added irony in that not only do they have to fund an extremely expensive legal process for authorising the deprivation of liberty – they also get hit with the additional costs to Coroners as, due to a quirk, the Coroners budget comes from local authorities rather than Her Majesty’s Courts and Tribunal Service.

*The Law Commission has just issued an interim statement to the effect it aims to publish draft legislation by the end of this year. It is likely to contain a clause which, if it becomes law, would amend the Coroners and Justice Act 2009 – explicitly stating that someone subject to the replacement scheme would not be under ‘state detention’. In turn, this would remove the need for a Coroner’s investigation in the vast majority of cases. There may well be arguments, however, that such a Clause would be incompatible with Article 2: we shall see.

 

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.

Michael Kennedy

Michael is a Barrister within our Court of Protection & Mental Health Law team and is also a Director of Switalskis. He is based at our Wakefield office but helps clients nationally and is recognised as a leading specialist in his field. He regularly lectures and trains a variety of legal professionals. Michael's profile