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Deprivation of Liberty Safeguarding (DOLS) and death

Where a DOL is in force the State has effectively curtailed the liberty of the patient; as such when the patient dies then the death is equivalent to a detention in custody  

This has implication for GPs at three points:

  1. Verification of death
  2. Conveyance of the deceased
  3. Certification of death

Re verification of death

Whomever is sufficiently trained to confirm that life is extinct should do so as they would normally’; whether there is a DOLs in place or not.

Whomever verifies the death should inform the coroner’s office; directly during office hours, or via the Police control Room out of hours who will inform the duty Coroners officer.

Re Conveyance of the deceased

There is some ambiguity regarding where the deceased body should be taken if death occurs out of hours; Of note undertakers should be informed that they should not do anything to the body in terms of embalming prior to the confirmation from the coroner that no PM is required.  The following advice is based upon the responses from coroners across Wessex:

If an anticipated death and in the absence of concerns from family or carers the deceased could go to an undertaker whlilst awaiting the GP to discuss with the coroner.

If not anticipated death or there are concerns from family or carers, this should be escalated by the police, as a ‘sudden death’; they could liaise with the on duty coroner to determine where the deceased should go (coroner’s mortuary or undertaker).

Re certification of death

For anyone who is subject to DOLS their death must be reported to the coroner; not necessarily by the GP.  The coroner will decide whether the a post-mortem is required in which case the deceased will be conveyed to the appropriate mortuary; or should a post mortem not be required the deceased may be transported to an undertakes of their choice.

For all patients subject to DOLS the coroner will contact the patient’s GP to discuss with them; even if it was not the GP who reported the death to the coroner.

If the DOLS has been applied for, but is not yet in place, the death should be treated as it would for any other patient not subject to a DOLS.

For further information, please refer to the following web page. . .

Deprivation of Liberty Safeguards (DOLS) and Mental Capacity Act - 5th Jan 2012

UPDATE MARCH 2017

On 16th November 2016 The Government accepted and supported an amendment to the Policing and Crime Bill proposed by Baroness Finlay (Chair of the National Mental Capacity Act Forum). Baroness Finlay proposed the removal death while subject to an authorised deprivation of Liberty from the definition of “state detention” for purposes of the Coroners and Justice Act 2009. Assuming that the Bill ( as amended) is accepted by the House of Commons, and is enacted unchanged the mandatory requirement to refer these deaths to the Coroner would no longer exist because there would be no legal obligation to undertake an inquest.

Section 178 of the Policing and Crime Bill 2017 (coroners’ investigations into deaths: meaning of “state detention”) will be enacted on 3rd April 2017. This amendment to the Coroners and Justice Act 2009 removes DoLS from the definition of State detention for the purposes of an inquest.

Therefore with effect from 3rd April 2017 there will be no longer be a mandatory requirement to refer to the Coroner simply because a person has died whilst subject to a DoLS Authorisation.

Please see attached the hyperlink for information/ confirmation of the enactment timetable.

http://legislation.data.gov.uk/uksi/2017/399/made/data.htm?wrap=true

Deprivation of Liberty (DOLs)

GUIDANCE No 16A

DEPRIVATION OF LIBERTY SAFEGUARDS (DoLS) – 3rd April 2017 onwards.

Conclusions

50. With a death occurring on or after 3rd April 2017 any person subject to a DoL (i.e. a

deprivation of liberty formally authorised under the MCA 2005) is no longer ‘in

state detention’ for the purposes of the 2009 Act.

51. When that person dies the death should be treated as with any other death outside the context of state detention1: it need only be reported to the coroner where one or more of the other requisite conditions are met.

52. Of course, where there is a concern about the death, such as a concern about care or treatment before death, or where the medical cause of death is uncertain, the coroner will investigate thoroughly in the usual way. There will always be a public interest in the careful scrutiny of any death in circumstances akin to state detention. As in all cases there must be sufficiency of coroner inquiry.

HH JUDGE MARK LUCRAFT QC

CHIEF CORONER

27th March 2017

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Updated on 10 October 2017 5936 views