LEGAL
District nursing practice for the death of patients subject to deprivation of liberty safeguards Richard Griffith
Senior Lecturer in Health Law, College of Health Science, Swansea University
T
he Chief Coroner recently issued guidance to coroners in England and Wales on whether the death of a person subject to a deprivation of liberty safeguard (DoLS) under the Mental Capacity Act 2005, schedule A1 should be subject to an inquest (Chief Coroner, 2014). The Chief Coroner issued the guidance in response to the tenfold increase in people subject to the safeguards following the decision of the UK Supreme Court in Cheshire West and Chester Council v P [2014], which introduced a more inclusive test for determining a deprivation of liberty in care settings. The guidance argues that a death while subject to a deprivation of liberty in a death in state detention that must be investigated by the coroner. District nurses are frequently called upon to care for terminally ill patients in care homes and other care settings, such as supported living, and must ensure that where that person is deprived of their liberty and subject to a safeguard their death is reported to the coroner. Where an inquest is held, a district nurse will be required to submit a statement of evidence if they were involved in the care of that person.
© 2015 MA Healthcare Ltd
The role of the coroner The coroner is one of the oldest judicial offices in the country. It is mentioned in the Articles of Eyre of 1194 where the coroners’ duties, apart from investigating sudden deaths, also included investigations that could raise money for the Crown (Cordner and Loff, 1994). Suicides were investigated, on the grounds that the goods and chattels of those found guilty of the crime of self-murder would be forfeited to the Crown. Over the centuries, the role of the coroner has been subject to change. Under the Coroners Act of 1887, the role was primarily concerned with determining the circumstances and the medical causes of sudden, violent and unnatural deaths. This role largely continues today under the provisions of the Coroners and Justice Act 2009. A coroner’s duty to investigate a death is set out under the Coroners and Justice Act 2009, section 1, which requires that: w A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the
British Journal of Community Nursing February 2015 Vol 20, No 2
Email: [email protected]
person’s death if: (a) the deceased died a violent or unnatural death (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention. For the purpose of the Coroners and Justice Act 2009, a person would be considered to be in state detention if they were compulsorily detained by a public authority (section 48(2)).
Deprivation of liberty safeguards and state detention Jervis on Coroners, which is considered the definitive work on coroners’ law and practice, argues that a death when subject to a DoLS should not automatically be considered a death in state custody (Matthews, 2014). For example, where the death occurs when a person is detained in a private care home, it would be outside the definition of state custody—as such, a care home is not a public authority. This approach would require the coroner to decide on a case-by-case basis whether to hold an investigation into a death when subject to a DoLS.
ABSTRACT
The Chief Coroner of England and Wales has issued guidance to coroners on whether the death of a person subject to a deprivation of liberty safeguard should be subject to an inquest. The guidance was issued in response to the tenfold increase in people being made subject to the safeguards since the Supreme Court’s decision in Cheshire West and Chester Council v P [2014]. It is the Chief Coroner’s view that all deaths where a person is subject to a deprivation of liberty safeguard or Court of Protection welfare order allowing a deprivation of liberty must be investigated by the coroner with an inquest held. This article considers the impact of the Chief Coroner’s guidance on district nurse practice. It discusses whether a person subject to a deprivation of liberty safeguard is in state detention and whether an inquest is necessary in every case.
KEY WORDS
w Coroner w Inquest w Death in state detention w Deprivation of liberty safeguards
93
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LEGAL The Chief Coroner, however, advises that a DoLS is always a death in state detention regardless of whether the person was in a private care home or a state-run facility and whether the death was from natural causes or not (Chief Coroner, 2014). This view is shared by the Supreme Court, which considers the safeguards as a human rights-compliant way of authorising the deprivation of liberty of a person detained by the state (Cheshire West and Chester Council v P [2014]). This suggests that all care homes and hospitals, including those in private ownership, are public authorities because they carry out functions of a public nature (Human Rights Act 1998, section 6).
Duty to hold an inquest The Chief Coroner’s view that all DoLS are forms of state detention means that all deaths when subject to a DoLS must be investigated by the coroner. Where a coroner has a duty to investigate a death, then they must, as part of that investigation, hold an inquest (Coroners and Justice Act 2009, section 6). There is likely to be a large increase in the number of inquests as a result of this guidance. A coroner’s inquest is a legal inquiry into the medical cause and circumstances of a death and includes establishing the details needed to register a death. It is a rare example of an inquisitorial trial, that is, a trial that seeks to establish the truth, rather than the more common adversarial trials seen in our legal system. During an inquest, the coroner will direct the majority of questions and call witnesses, such as district nurses, who have information concerning the inquiry. It is not a civil or a criminal trial and cannot apportion blame on any individual. It is held in public unless there is an application for evidence to be heard in secret. Where the coroner has a duty to hold an inquest, they must inform the married or civil partner of the deceased. Where the deceased is not married or does not have a civil partner, then the nearest relative must be informed unless there are no relatives, in which case the deceased’s personal representative will be informed. Relatives can attend an inquest and question witnesses.
© 2015 MA Healthcare Ltd
Contact with the coroner service Where the coroner is required to hold an inquest, witnesses may be asked or formally summoned to attend. The decision whether to call a witness, such as a district nurse, will depend on their involvement in caring for the deceased, the circumstances of the death and whether they have relevant information to assist the inquest. As part of the inquisitorial process, a district nurse may have contact with the coroner’s office before the actual inquest. To enable the coroner to decide whether or not to call a witness, prospective witnesses will be interviewed by a coroner’s officer, who is generally a police officer. This statement will provide proof of evidence to the coroner about the likely contributions of potential witnesses to the inquest. The interview will involve the district nurse making a statement relating to the deceased patient in whose care they were involved. Once a district nurse is contacted by the
British Journal of Community Nursing February 2015 Vol 20, No 2
coroner’s office, it is advisable to follow agreed local policies for the giving of statements to the police or coroner. A district nurse has a right to be represented by a member of the staff organisation or a legal representative.
District nurse’s interview When interviewed by a member of the coronial service, the district nurse should answer all questions clearly and concisely. Reference should be made to appropriate clinical records or other records detailing the care of the patient prior to their death. During the interview, the answers given by the district nurse are noted by the coroner’s officer and form the basis of a written statement submitted to the coroner’s court. Giving evidence may be limited to reading out the statement prepared by the witness and coroners’ officer at interview. The Chief Coroner’s Guidance (2014) suggests that, in most cases, the deaths will be expected deaths from natural causes and the inquest can be done on the papers without the need to call witnesses.
Inquest with a jury An inquest must be held without a jury unless one of the specific requirements in the Coroners and Justice Act 2009, section 7 applies. In the case of a DoLS, a death in state detention only requires an inquest with a jury if: w The death was a violent or unnatural one, or w The cause of death is unknown. A violent or unnatural death is not considered a legal term but an ordinary phrase of the English language, and is defined by what ordinary people would consider a violent or unnatural death to be. A death would therefore be unnatural if there is reasonable suspicion that the death may have been due to causes other than a common illness (R v Price [1884]). The definition also applies where there is suspicion that death is due to self-neglect or neglect by others. Death due to self-neglect, for example, applies to vulnerable adults who refuse help from a professional, such as a district nurse, and are at grave risk of harm. Neglect by others is a gross failure to fulfil one’s responsibilities to provide needed care for someone in a dependent position (R v Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995]).
Status of the guidance The Chief Coroner acknowledges that his guidance is only an expression of opinion and is not binding on coroners. Coroners are able to make their own independent decisions on the matter. The guidance is, however, endorsed by the Ministry of Justice and Department of Health. It is likely to be taken into account by most coroners who require deaths in these circumstances to be reported to them for investigation. Despite its endorsement, the Department of Health notes that while the death of an individual who is subject to a DoLS authorisation or welfare order authorising a deprivation of liberty issued by the Court of Protection is a death in state detention, for those caring for that person and for the family, in most cases, the death will have occurred in a
95
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LEGAL normal care environment (Fry, 2015). The Department of Health argues that where it is clear that there is no suspicion of untoward factors contributing to the death, then any inquest puts the least possible stress on the family and is completed as rapidly as possible. The department is concerned that bereaved families will be further distressed by being visited by uniformed police officers assigned to investigate deaths on behalf of the coroner or of delays in releasing the body of a loved one to their family to allow a funeral to proceed. The Department of Health therefore recommends that coroners keep in close communication with the DoLS lead in their local authority and NHS Trust so that they can ensure a consistent message is given to providers and so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgment. District nurses who are involved in the care of a person who then dies while subject to a DoLS will be well placed to prepare relatives for the coroner’s investigation. The Chief Coroner hopes that, in most cases, local coro-
KEY POINTS
w The Chief Coroner has issued guidance stating that deaths when a person is subject to a deprivation of liberty safeguard must be reported to the coroner
w The deaths need to be reported to the coroner for investigation because they are considered to be deaths in state detention
w District nurses who provide care to persons in care homes subject to DoLS who die while subject to an authorisation will likely be required to submit a statement to the coroner and, on occasion, have to give evidence at an inquest
ners will be able to conduct paper inquests without the need to call witnesses.
Conclusion The Chief Coroner’s guidance is likely to be followed by local coroners who will want deaths of persons subject to a DoLS referred to them for investigation and inquest. This will result in a large increase in the number of inquests in England and Wales and make involvement in the coronial process a more common occurrence for district nurses. District nurses involved in the care of people subject to a DoLS in care homes and other community care settings will have to be aware that if the person dies, their death will be subject to investigation and it is likely their records will be scrutinised. Furthermore, it may be necessary to submit a witness statement and, on occasion, give evidence at an inquest. BJCN If you are interested in finding out more about the legal cases noted in this feature, please email the editor at [email protected] Cheshire West and Chester Council v P [2014] UKSC 19 R v Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1 R v Price [1884] 12 QBD 247 Chief Coroner (2014) Chief coroner’s guidance no. 16: deprivation of liberty safeguards (DoLS). Chief Coroner’s Office, London. http://bit.ly/1usYGbx (accessed 21 January 2015) Cordner SM, Loff B (1994) 800 years of coroners: have they a future? Lancet 344(8925): 799–801 Fry N (2015) Letter to MCA DoLS leads in local authorities and the NHS: Update on the Mental Capacity Act and following the 19 March 2014 Supreme Court judgment. Department of Health, London. http://bit.ly/1AHghcr (accessed 21 January 2015) Matthews P (2014) Jervis on Coroners. Sweet and Maxwell, London
We provide support and advice for first-time writers and want to hear from you. Get in touch and we will send you a copy of our author guidelines. Phone: 020 7501 6716 | Email: [email protected] Or write to: BJCN, St Jude’s Church, Dulwich Road, London SE24 0PB
96
© 2015 MA Healthcare Ltd
Would you like to write for the British Journal of Community Nursing?
British Journal of Community Nursing February 2015 Vol 20, No 2
Journal of Community Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 24, 2015. For personal use only. No other uses without permission. . All rights re
District nursing practice for the death of patients subject to deprivation of liberty safeguards Richard Griffith
Senior Lecturer in Health Law, College of Health Science, Swansea University
T
he Chief Coroner recently issued guidance to coroners in England and Wales on whether the death of a person subject to a deprivation of liberty safeguard (DoLS) under the Mental Capacity Act 2005, schedule A1 should be subject to an inquest (Chief Coroner, 2014). The Chief Coroner issued the guidance in response to the tenfold increase in people subject to the safeguards following the decision of the UK Supreme Court in Cheshire West and Chester Council v P [2014], which introduced a more inclusive test for determining a deprivation of liberty in care settings. The guidance argues that a death while subject to a deprivation of liberty in a death in state detention that must be investigated by the coroner. District nurses are frequently called upon to care for terminally ill patients in care homes and other care settings, such as supported living, and must ensure that where that person is deprived of their liberty and subject to a safeguard their death is reported to the coroner. Where an inquest is held, a district nurse will be required to submit a statement of evidence if they were involved in the care of that person.
© 2015 MA Healthcare Ltd
The role of the coroner The coroner is one of the oldest judicial offices in the country. It is mentioned in the Articles of Eyre of 1194 where the coroners’ duties, apart from investigating sudden deaths, also included investigations that could raise money for the Crown (Cordner and Loff, 1994). Suicides were investigated, on the grounds that the goods and chattels of those found guilty of the crime of self-murder would be forfeited to the Crown. Over the centuries, the role of the coroner has been subject to change. Under the Coroners Act of 1887, the role was primarily concerned with determining the circumstances and the medical causes of sudden, violent and unnatural deaths. This role largely continues today under the provisions of the Coroners and Justice Act 2009. A coroner’s duty to investigate a death is set out under the Coroners and Justice Act 2009, section 1, which requires that: w A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the
British Journal of Community Nursing February 2015 Vol 20, No 2
Email: [email protected]
person’s death if: (a) the deceased died a violent or unnatural death (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention. For the purpose of the Coroners and Justice Act 2009, a person would be considered to be in state detention if they were compulsorily detained by a public authority (section 48(2)).
Deprivation of liberty safeguards and state detention Jervis on Coroners, which is considered the definitive work on coroners’ law and practice, argues that a death when subject to a DoLS should not automatically be considered a death in state custody (Matthews, 2014). For example, where the death occurs when a person is detained in a private care home, it would be outside the definition of state custody—as such, a care home is not a public authority. This approach would require the coroner to decide on a case-by-case basis whether to hold an investigation into a death when subject to a DoLS.
ABSTRACT
The Chief Coroner of England and Wales has issued guidance to coroners on whether the death of a person subject to a deprivation of liberty safeguard should be subject to an inquest. The guidance was issued in response to the tenfold increase in people being made subject to the safeguards since the Supreme Court’s decision in Cheshire West and Chester Council v P [2014]. It is the Chief Coroner’s view that all deaths where a person is subject to a deprivation of liberty safeguard or Court of Protection welfare order allowing a deprivation of liberty must be investigated by the coroner with an inquest held. This article considers the impact of the Chief Coroner’s guidance on district nurse practice. It discusses whether a person subject to a deprivation of liberty safeguard is in state detention and whether an inquest is necessary in every case.
KEY WORDS
w Coroner w Inquest w Death in state detention w Deprivation of liberty safeguards
93
Journal of Community Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 24, 2015. For personal use only. No other uses without permission. . All rights re
LEGAL The Chief Coroner, however, advises that a DoLS is always a death in state detention regardless of whether the person was in a private care home or a state-run facility and whether the death was from natural causes or not (Chief Coroner, 2014). This view is shared by the Supreme Court, which considers the safeguards as a human rights-compliant way of authorising the deprivation of liberty of a person detained by the state (Cheshire West and Chester Council v P [2014]). This suggests that all care homes and hospitals, including those in private ownership, are public authorities because they carry out functions of a public nature (Human Rights Act 1998, section 6).
Duty to hold an inquest The Chief Coroner’s view that all DoLS are forms of state detention means that all deaths when subject to a DoLS must be investigated by the coroner. Where a coroner has a duty to investigate a death, then they must, as part of that investigation, hold an inquest (Coroners and Justice Act 2009, section 6). There is likely to be a large increase in the number of inquests as a result of this guidance. A coroner’s inquest is a legal inquiry into the medical cause and circumstances of a death and includes establishing the details needed to register a death. It is a rare example of an inquisitorial trial, that is, a trial that seeks to establish the truth, rather than the more common adversarial trials seen in our legal system. During an inquest, the coroner will direct the majority of questions and call witnesses, such as district nurses, who have information concerning the inquiry. It is not a civil or a criminal trial and cannot apportion blame on any individual. It is held in public unless there is an application for evidence to be heard in secret. Where the coroner has a duty to hold an inquest, they must inform the married or civil partner of the deceased. Where the deceased is not married or does not have a civil partner, then the nearest relative must be informed unless there are no relatives, in which case the deceased’s personal representative will be informed. Relatives can attend an inquest and question witnesses.
© 2015 MA Healthcare Ltd
Contact with the coroner service Where the coroner is required to hold an inquest, witnesses may be asked or formally summoned to attend. The decision whether to call a witness, such as a district nurse, will depend on their involvement in caring for the deceased, the circumstances of the death and whether they have relevant information to assist the inquest. As part of the inquisitorial process, a district nurse may have contact with the coroner’s office before the actual inquest. To enable the coroner to decide whether or not to call a witness, prospective witnesses will be interviewed by a coroner’s officer, who is generally a police officer. This statement will provide proof of evidence to the coroner about the likely contributions of potential witnesses to the inquest. The interview will involve the district nurse making a statement relating to the deceased patient in whose care they were involved. Once a district nurse is contacted by the
British Journal of Community Nursing February 2015 Vol 20, No 2
coroner’s office, it is advisable to follow agreed local policies for the giving of statements to the police or coroner. A district nurse has a right to be represented by a member of the staff organisation or a legal representative.
District nurse’s interview When interviewed by a member of the coronial service, the district nurse should answer all questions clearly and concisely. Reference should be made to appropriate clinical records or other records detailing the care of the patient prior to their death. During the interview, the answers given by the district nurse are noted by the coroner’s officer and form the basis of a written statement submitted to the coroner’s court. Giving evidence may be limited to reading out the statement prepared by the witness and coroners’ officer at interview. The Chief Coroner’s Guidance (2014) suggests that, in most cases, the deaths will be expected deaths from natural causes and the inquest can be done on the papers without the need to call witnesses.
Inquest with a jury An inquest must be held without a jury unless one of the specific requirements in the Coroners and Justice Act 2009, section 7 applies. In the case of a DoLS, a death in state detention only requires an inquest with a jury if: w The death was a violent or unnatural one, or w The cause of death is unknown. A violent or unnatural death is not considered a legal term but an ordinary phrase of the English language, and is defined by what ordinary people would consider a violent or unnatural death to be. A death would therefore be unnatural if there is reasonable suspicion that the death may have been due to causes other than a common illness (R v Price [1884]). The definition also applies where there is suspicion that death is due to self-neglect or neglect by others. Death due to self-neglect, for example, applies to vulnerable adults who refuse help from a professional, such as a district nurse, and are at grave risk of harm. Neglect by others is a gross failure to fulfil one’s responsibilities to provide needed care for someone in a dependent position (R v Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995]).
Status of the guidance The Chief Coroner acknowledges that his guidance is only an expression of opinion and is not binding on coroners. Coroners are able to make their own independent decisions on the matter. The guidance is, however, endorsed by the Ministry of Justice and Department of Health. It is likely to be taken into account by most coroners who require deaths in these circumstances to be reported to them for investigation. Despite its endorsement, the Department of Health notes that while the death of an individual who is subject to a DoLS authorisation or welfare order authorising a deprivation of liberty issued by the Court of Protection is a death in state detention, for those caring for that person and for the family, in most cases, the death will have occurred in a
95
Journal of Community Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 24, 2015. For personal use only. No other uses without permission. . All rights re
LEGAL normal care environment (Fry, 2015). The Department of Health argues that where it is clear that there is no suspicion of untoward factors contributing to the death, then any inquest puts the least possible stress on the family and is completed as rapidly as possible. The department is concerned that bereaved families will be further distressed by being visited by uniformed police officers assigned to investigate deaths on behalf of the coroner or of delays in releasing the body of a loved one to their family to allow a funeral to proceed. The Department of Health therefore recommends that coroners keep in close communication with the DoLS lead in their local authority and NHS Trust so that they can ensure a consistent message is given to providers and so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgment. District nurses who are involved in the care of a person who then dies while subject to a DoLS will be well placed to prepare relatives for the coroner’s investigation. The Chief Coroner hopes that, in most cases, local coro-
KEY POINTS
w The Chief Coroner has issued guidance stating that deaths when a person is subject to a deprivation of liberty safeguard must be reported to the coroner
w The deaths need to be reported to the coroner for investigation because they are considered to be deaths in state detention
w District nurses who provide care to persons in care homes subject to DoLS who die while subject to an authorisation will likely be required to submit a statement to the coroner and, on occasion, have to give evidence at an inquest
ners will be able to conduct paper inquests without the need to call witnesses.
Conclusion The Chief Coroner’s guidance is likely to be followed by local coroners who will want deaths of persons subject to a DoLS referred to them for investigation and inquest. This will result in a large increase in the number of inquests in England and Wales and make involvement in the coronial process a more common occurrence for district nurses. District nurses involved in the care of people subject to a DoLS in care homes and other community care settings will have to be aware that if the person dies, their death will be subject to investigation and it is likely their records will be scrutinised. Furthermore, it may be necessary to submit a witness statement and, on occasion, give evidence at an inquest. BJCN If you are interested in finding out more about the legal cases noted in this feature, please email the editor at [email protected] Cheshire West and Chester Council v P [2014] UKSC 19 R v Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1 R v Price [1884] 12 QBD 247 Chief Coroner (2014) Chief coroner’s guidance no. 16: deprivation of liberty safeguards (DoLS). Chief Coroner’s Office, London. http://bit.ly/1usYGbx (accessed 21 January 2015) Cordner SM, Loff B (1994) 800 years of coroners: have they a future? Lancet 344(8925): 799–801 Fry N (2015) Letter to MCA DoLS leads in local authorities and the NHS: Update on the Mental Capacity Act and following the 19 March 2014 Supreme Court judgment. Department of Health, London. http://bit.ly/1AHghcr (accessed 21 January 2015) Matthews P (2014) Jervis on Coroners. Sweet and Maxwell, London
We provide support and advice for first-time writers and want to hear from you. Get in touch and we will send you a copy of our author guidelines. Phone: 020 7501 6716 | Email: [email protected] Or write to: BJCN, St Jude’s Church, Dulwich Road, London SE24 0PB
96
© 2015 MA Healthcare Ltd
Would you like to write for the British Journal of Community Nursing?
British Journal of Community Nursing February 2015 Vol 20, No 2
Journal of Community Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on November 24, 2015. For personal use only. No other uses without permission. . All rights re
