End of life care and the Deprivation of Liberty Safeguards (DoLS)

Posted on: December 17th, 2014 by Jess Flanagan

Regular readers of this blog will know that I have written extensively about recent developments concerning DoLS: the Safeguards which protect individuals detained in a care home or hospital for the purpose of giving them care and treatment, but who lack the capacity to consent to that treatment or detention. The Mental Capacity Act 2005 provides a legal framework to deal with authorising any deprivation of liberty that arises in these circumstances to ensure that it is lawful and in March 2014, the Supreme Court clarified that an individual without capacity is deprived of their liberty in circumstances where they are under the ‘continuous supervision and control [of their carers] and are not free to leave.’

Death in DoLS – Chief Coroner’s Guidance

There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that more departments are supporting someone subject to a DoLS authorisation and require guidance about the services they provide.
On Friday 5 December 2014 I attended (and spoke at) the Legal Action Group Community Care Conference 2014. One of the issues discussed was what happens when someone dies while they are the subject of a DoLS authorisation. How and when should inquests be undertaken in those circumstances and in addition, how will the DoLS be used in a hospice environment.
On the same day, and as if to answer some of the questions posed at the conference, the Chief Coroner published ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS).’ Found here (link to guidance – http://www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/)
The Guidance sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation (paragraph 33). There was already a statutory requirement for a coroner to commence an investigation into a person’s death (s1(2)(c) The Coroners and Justice Act 2009 ‘CJA09’) where the coroner has reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but it has been necessary for the Chief Coroner to provide some guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DoL.
If a person dies in state detention then the coroner must hold an inquest and this will quite naturally result in an increase in workload and cost within the system.

‘In state detention’

As explained above, a coroner must commence an investigation into a person’s death where the person died in state detention. This is defined in s48(2) CJA09, which states: ‘A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998’. On one analysis, this means that DoLS fall squarely into the definition of ‘state detention’ and as such, should be investigated by the Coroner.
The Chief Coroner agrees and his rationale for adopting that view appears to affirm Lady Hale’s insistence (in the leading judgment in the Supreme Court) that it doesn’t matter how comfortable the individual may be, and how accepting of their care arrangements, they are deprived of their liberty by the state; ‘a gilded cage is still a cage’ and those without capacity should have the same access to human rights as those with.
Although this approach might bring additional expense and workload, until such time that the High Court deals with this issue, or there is further legislation, the guidance from the Chief Coroner is clear:

54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.

55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.

What type of investigation?

With an increase in the use of DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a coroner? Where the answer is yes, the format that the investigation might take is important.

Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a coroner on the papers (paragraph 71) and only those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.

Only the deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest.

On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death (paragraphs 61-63.)

Some of the people who had been deprived of their liberty under DoLS in care homes or mental health hospitals may not have died if they had been in their own homes. After months of fighting, the family of Connor Sparrowhawk have won the right to an Article 2 inquest into his death in detention under the Mental Health Act 2983 (see this article for more information). His death was quite clearly not a natural death, but a lot of effort had to be put into winning an Article 2 inquest.

Many deaths in homes or hospitals cannot be viewed as ‘natural.’ Some deaths may appear to be natural, but are actually the result of a failure by the state to take measures within the scope of its powers to avoid a death where they knew or ought to have known that there was a real or immediate risk to the life of the deceased. (See paragraph 61 and Osman v UK [1998] 29 EHRR.) As the volume of cases is inevitably set to increase, who will spot these deaths?

In an article in Inquest Law in September 2014, two lawyers argue that where a death by natural causes occurs in a place of state detention, an Article 2 compliant jury inquest should be held in any event. Their argument is predicated on the fact that by the nature of their illnesses, individuals in these environments may not be able to effectively communicate their needs to their carers and will be dependent on their carers to identify and respond to those needs, which may, they argue, lead to a death which is attributable to the failure of the state to respond to those needs.

The Chief Coroner has not adopted that approach in his guidance. He suggests that in many cases there will be no arguable breach of the state’s general duty to protect life and doesn’t set out any detailed guidance for dealing with such incidents.

The decision of Cheshire West has already led to an increase in paperwork for Local Authorities, health authorities, the Court of Protection and now for coroners. If these organisations become so overwhelmed with paperwork, will they notice the cases that need proper scrutiny and that a paper review cannot support? Further, won’t all of these paper reviews divert necessary resources from those cases that really do go wrong and would benefit from the detailed, independent scrutiny of a jury?

DoLS in hospices

The nature of the service provided in hospices means that the instances of deaths will be huge, increasing further the impact on the work of a coroner.

Why might this be an issue? When would someone receiving end of life care need to be made subject of a DoLS authorisation?

On a strict application of the MCA 2005, and by analogy to the Court of Protection’s treatment of individuals with Persistent Vegetative State and Minimally Conscious State in relation to incapacity, when an individual is unconscious there is arguably an impairment or disturbance of the functioning of the mind or brain (s2 MCA 2005). The diagnostic test is fulfilled and when looking at the functional test, this is fulfilled because the patient is unconscious andthey are unable to communicate a decision about where they want to live and receive care. It is likely that the care they are receiving and the environment they are receiving it in, is overwhelmingly in their best interests, necessary and proportionate and as such, meets the key requirements for a DoL needing authorisation.. My analysis of this is, I think, shared by Alex Ruck Keene who has also been writing a lot on this topic recently.

Since there is often limited state involvement in the care provided in a hospice, will a DoL be attributable to the state and require authorisation?

Current legislation ensures that a private entity, if carrying out functions of the state (ie providing care funded by the state), will be caught by the DoLS and will need to obtain authorisation for any deprivation of liberty. Section 64(6) of the MCA 2005 confirms that it does not matter whether a person is deprived of their liberty by a public authority or not for the scheme to apply. It is therefore safer for a hospice as Managing Authority to ensure that the detention is authorised.

Concerns have been raised by individuals working with families in hospices as they really do not want to be troubled by Best Interests Assessors and DOLS documentation at a time when they want to be spending time with dying family members. This is an incredibly pertinent point. There is also an argument that Parliament could not have intended these people to be afforded the protection of the DoLS, and that it is burdensome and an overextension of the scheme to expect it to. Others remind us that to exclude incapacitated adults in hospices would be completely contrary to the concerns that Lady Hale seeks to address in her judgment in Cheshire West. It is an incredibly difficult balance to get right.

One suggestion was that if a patient goes into a hospice by choice (which is usually the case), they could sign a form to confirm that they give their consent and this might somehow avoid the later implication of a DoLS authorisation once capacity has been lost. I have concerns with that on a legal basis, as capacity is time and decision specific. There is currently no legal mechanism that I am aware of where a DoLS authorisation can be opted out of. It is a framework to authorise existing restrictions on liberty which amount to a DoL, and there is no ‘Advance Decision’ alternative to deal with this.

Is this another issue that might require legislation? Perhaps the Law Commission will look at this as a separate aspect of their review of the legislation?

The Supreme Court decision has already led to an escalation of assessments and increased pressure on already depleted resources in Local Authorities and courts. Without a solution to DoLS in hospices this could be set to rise even higher and into new areas of public work, but it doesn’t always make sense to insist on the use of a framework which is there to support and protect the human rights of those who are living, for those who have gone to a peaceful and calm place to die. Does this mean picking and choosing when fundamental human rights should apply, and to whom? A tricky balance to achieve.

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