I rise to support amendment 135, and I am delighted the Government have accepted Baroness Finlay’s amendment.
I am a barrister and have represented many bereaved families and public authorities at coroners’ inquests, but I had not expected this fairly niche area of legal practice to feature so prominently in my constituency casework after being elected as an MP. Shortly after I was elected, an incredibly dignified lady called Rosalind asked for my help because of inordinate delays in the west London
coroner’s court in issuing her husband’s death certificate, which meant the insurance company was holding up funeral arrangements.
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There were certainly problems with the service standards at that coroner’s court, and unfortunately there still are, and I raised them both with the court and in this House. But that case would not have even been before a coroner’s court had Rosalind’s deceased husband not been the subject of a deprivation of liberty safeguard or DOLS and had he not died in a care home.
Section 1 of the Coroners and Justice Act 2009 requires that a coroner hold an inquest in certain defined circumstances such as a death in custody or otherwise in state detention—another example is a violent or unnatural death. In cases that do not fulfil those mandatory criteria, the coroner has discretion about whether to open an inquest, depending on the facts.
Since the Mental Capacity Act 2005 came into force, the definition of whether someone is detained or deprived of their liberty has been tested in the courts numerous times. In 2014, the Supreme Court considered the appeal of P v. Cheshire West and Chester Council, and P and Q v. Surrey County Council. In those cases, the Supreme Court gave a very broad definition of deprivation of liberty. The result of that decision has been that authorisations now have to be sought for deprivation of liberty in many more cases than they used to. That includes most cases where a person suffers from dementia and is in a care home, where they are not detained in the way in which we would use that word, but they would be prevented from leaving if they tried to do so.
In one care home in my constituency, 90% of residents are now subject to DOLS, and on the current interpretation of the law there would have to be an inquest in each of their cases, even if, as is likely, they died of entirely predictable natural causes in their sleep. This has caused not only a huge upturn in the work of coroners’ courts, but upset to many families who have to go through the trauma of an inquest after the trauma of losing a loved one.
I raised this problem, I think for the first time in this House, in a Westminster Hall debate on 16 December 2015, and I am delighted that the Government have now found a legislative vehicle to reverse the unintended effect of the Cheshire West judgment. I say “unintended” because that case was not about coroners’ courts, and the issue was not canvassed before the Supreme Court. I can safely say that it was not the intention of this House in passing the Coroners and Justice Act or the Mental Capacity Act to mandate an inquest in every case in which a DOLS applies and to apply a rule intended to cover people in the state’s care in terms of detention in a prison or an immigration detention facility or police custody to patients needing care in care homes or in hospital.
I should make it clear that this amendment in no way precludes inquests being opened into deaths in care homes or hospitals where DOLS apply. Those inquests will only not be mandated; coroners will be able to open them at their discretion and the matter could be referred to the coroner by a family or by a member of staff at a care home or by anyone else.
When I got the first of my many cases in this area, I went to see the Chief Coroner for England and Wales. He was very helpful. I have read his 2014 and 2015 annual reports, both of which refer to this problem and to the massive increase in demand on coroners’ time caused by it. I am sure from having read his reports that the Chief Coroner would support this amendment or an amendment that has the same effect.
I commend the Government on accepting Baroness Finlay’s amendment, and I commend her on introducing it in the other place and Members of this House who have supported it. Finally, I commend Rosalind and Brook House nursing home in New Malden on first raising this problem with me. I hope they are satisfied that a piece of constituency casework that they brought to me has culminated in a change in the law.
Lords amendment 1 agreed to.
Lords amendments 2 to 23, 25 to 95, 97 to 133, 135, 143 to 158, 160 to 301, 303, 304 and 306 agreed to.
Motion made, and Question put forthwith (Standing Order No. 83H), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 24, 96, 136 to 142, 159, 302 and 307.
That Ms Diane Abbott, Victoria Atkins, Nic Dakin, Andrew Griffiths, Brandon Lewis and Amanda Milling be members of the Committee.
That Brandon Lewis be the Chair of the Committee.
That three be the quorum of the Committee.
That the Committee do withdraw immediately.—(Christopher Pincher.)
Question agreed to.
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.