Ann Coffey MP introduced a Private Member’s Bill in the Commons today to scrap distressing rules that say dementia sufferers who die in care homes are classed as being in “state detention”.
Ms Coffey has been campaigning on the issue since families told her of the distress of having to wait to bury their loved ones because inquests are required into the deaths of dementia sufferers who are subject to a Deprivation of Liberty order.
Ms Coffey decided to introduce the Private Members Bill after meeting the Chief Coroner for England and Wales, Judge Peter Thornton.
The meeting took place after Ms Coffey held an adjournment debate in the Commons in June when she highlighted the tenfold increase in applications for DoLS and talked of the misery of relatives.
During the debate she called on the Chief Coroner to scrap guidance he issued last year that all deaths of people subject to a DoLS are deemed to involve ‘state detention’ and should therefore trigger a coroner’s investigation.
When they met, Judge Thornton told Ms Coffey that he shared her concerns about unnecessary distress to some relatives of those who die subject to a DoLS authorisation.
Councils were inundated with DoLS applications from care homes after a Supreme Court ruling last year, which effectively lowered the threshold for what constitutes deprivation of liberty in care. The problem was made worse by guidance issued by the Chief Coroner to local coroners’ following the Supreme Court judgement.
The Chief Coroner said then that all persons who die subject to a DoLS order must be the subject of a coroner investigation, whether the death was from natural causes or not. For the purposes of the 2009 Coroners’ & Justice Act they are deemed to be in “state detention.”
But now the Chief Coroner has written to all coroners telling them he has indicated to the Government and the Law Commission, who are carrying out a review of DoLS, that a simple amendment to the Coroners and Justice Act 2009 could solve the problem of unnecessary cases being reported to coroners.
This would require an amendment to primary legislation and as there is no justice bill on the horizon, Ms Coffey has decided to move things forward by tabling her own Private Members Bill Coroners and Justice Act 2009 (Duty to Investigate) (Amendment) Bill to raise the profile of the issue again in Parliament.
Her amendment, which echoes the wording suggested by the Chief Coroner, says:
“For the purposes of this Act, a person who dies while subject to an authorisation granted under Schedule A1 to the Mental Capacity Act 2005 depriving that person of his or her liberty and detaining him or her in a hospital or care home shall not be considered to have died while in custody or otherwise in state detention.”
Ms Coffey said: “It is clear from my meeting with the Chief Coroner that he accepts that something has to be done to stop this profound and unintended distress to relatives which was a consequence of the original guidance.
“When loved ones die in care, relatives should not have their grief exacerbated by this sledgehammer approach.
“This system has developed into an expensive bureaucratic nightmare that is diverting resources from front line care.”
Stockport Council alone is expecting to spend around £1.2 million this year on DoLS assessments and has hired six new social workers, a co-ordinator, an outside agency and a part time solicitor. Local GPs have also told Ms Coffey that they are becoming overwhelmed.
The Law Commission held a special evidence session in Parliament last week for MPs and peers as part of its fundamental review of the controversial DoLS. Ms Coffey urged the Law Commission to recommend the scrapping of distressing rules that say dementia sufferers who die in care homes are classed as in “state detention.”
She also warned that proposals from the Law Commission to replace DoLS with a new Protective Care Scheme could turn out to be just as cumbersome, bureaucratic and expensive.
She said : “I am worried that it will turn out to be ‘more of the same’ as there is no evidence that this new scheme will lead to better outcomes or improve care.
“We must be careful that in our desire to protect people from Deprivation of Liberty and deal with the unintended consequences of the Supreme Court ruling last summer that we do not create another bureaucratic and expensive monster.”