Wednesday, 21 April 2010

Reports reported

Most coroners are receiving an appropriate response, but that might not be the whole story

Where, after an inquest, a coroner believes that it might prevent other deaths, he can write to an appropriate authority, reporting the evidence he has heard. Any such report is sent under rule 43 of the Coroners Rules, and the coroner must copy it, and any response, to the Lord Chancellor. An analysis of those reports has just been published. Its contents might be seen as reassuring, but one or two significant concerns remain.

In the six months from 1 April 2009, there were 164 inquests in which rule 43 reports were issued. A third of these concerned ‘hospital deaths’, and nearly a fifth, ‘road deaths’. Eight per cent, meanwhile, concerned work- or health and safety-related deaths, and a similar proportion, mental health-related deaths. The new analysis contains nothing, however, to indicate how these classifications were reached: was it according to the place or means of death or to its immediate cause, or to either the content or the recipient of the rule 43 letter? That deficiency is significant, for it might render the statistics unreliable. If, for example, someone were to die in front of a train, having absconded from the hospital where she had been receiving compulsory psychiatric treatment, would any rule 43 letter be classified as mental health-related; or as concerning a hospital death or one in custody; or as ‘railway-related’? This concern is compounded by the brief summaries provided in the new analysis, which suggest that some ‘deaths in custody’ actually raised distinct mental health concerns. Only one death, furthermore, was classified as ‘railway related’.

Wider implications
The new analysis provides details of some rule 43 reports that might have wider implications. In the ‘drug- and medication-related’ category, these include the death of a man who, believing it to be ecstasy, swallowed a substance used for de-worming animals. The coroner wrote to the Home Secretary and subsequently, the substance was brought within the Misuse of Drugs Act 1971. The analysis also mentions the unfortunate church warden, who died when he fell from his own bell-tower. After hearing that the man had not been wearing a safety harness, the Coroner wrote to the Archbishops’ Council, inviting it to take appropriate action. The Council, however, replied that as each parochial church council is autonomous, there was little it could do. It is only in this part of the analysis that we get a flavour of the responses coroners receive, but it is clear that recipients don’t always accept the content or the implication of rule 43 reports.

In the period in question, rule 43 reports were issued in 61 of the 114 coroner districts. (The number of coroners that made no reports – 53 - is slightly down on the previous period’s figure). The most reports again came from the Greater Manchester South district, where ten reports compare with 18 in the earlier (and longer) period, but also from Brighton and Hove, which could only previously claim two reports. The City of Manchester, however, and Cardiff and the Vale of Glamorgan, are two coronial districts in which the number of reports fell considerably, to four and six respectively, from 12 and 15. The new analysis acknowledges that the highest-reporting districts are not representative of the whole. When they are discounted, the average number of rule 43 reports in the relevant six-month period is 1.06 per coroner district, or 1.98 per district making such a report.

Rule 43 now also requires recipients to respond to reports, and to do so within a specified period. On the face of it, the figures in the new analysis are encouraging, for they suggest that where a report was issued, no response was outstanding that was due within the same reporting period. That might not, however, be the whole story.

The format of the analysis allows to be listed as outstanding only responses to reports issued within the current reporting period. It provides no information about responses listed as outstanding in last report, and there were more than a hundred of those. Before April 2009, for example, the Manchester City coroner sent a rule 43 report to an electronics company. We know that the report concerned the maintenance of ‘cherry-picker’ machines and a response was outstanding at the end of the reporting period. What we cannot tell, however, is when, or even whether, that response was received.

Where organisations receive coroners’ reports, it seems most are complying with the amended rules. But they aren’t receiving them all that often. The official analysis suggests that on average, fewer than three rule 43 reports are made in each coroner district per year. And the limited scope of that analysis can itself minimise the embarrassment caused to those who persistently fail to respond.

Wednesday, 7 April 2010

Home thoughts, abroad

I wrote recently about the Deprivation of Liberty Safeguards (DoLS), by which incapable people can be deprived of liberty but given some basic protection at the same time. (See: here) I received a number of heartfelt, though by no means unanimous, responses, so I thought it might be helpful to report something of what my correspondents said.

No one disagreed that the number of DoLS applications is well below what was expected, but not everyone accepted that in some places, applications are actually being discouraged. One DoLS lead was “disappointed” by my suggestion. He said, “My team and I are working very hard at promoting the importance of the safeguards and very much take an if-in-doubt-apply approach”, and he described the DoLS as “a very powerful tool for positive change and holding services to account.”

Some correspondents felt the statistics might not reflect bad practice. One, a doctor in an area with little DoLS activity, referred to his local training strategy, which “emphasised that deprivation of liberty amounts to relatively draconian control over someone's life.” He favoured an approach based on the Mental Health Act: “For the last 20 years I have been a proponent of the use of guardianship as a means of making important accommodation decisions for people who lack capacity, and we appear to have roughly trebled the number of guardianships used in the last ten months.” Of course, while guardianship may be appropriate for those who are not within the DoLS, the conventional view is that it has little to offer where someone is deprived of liberty.

Most correspondents considered the safeguards unduly complex, and some reported general opposition to their use. One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior people consider deprivation of liberty a ‘bad’ thing and therefore are reluctant to invite external scrutiny on whether they are responsible for it.” Some felt the process might fail even without overt opposition. A DoLS lead wrote, “Care managers are not always recognising behaviours that warrant the need for a referral”, while someone else said the MCA “is not clearly and properly understood by many practitioners on the ground and certainly not by managers of homes and hospitals”. This might, he felt, have profound implications: “I am not sure that decision-makers are even getting through the starting gate of the MCA, never mind reaching the logical finishing line that is DoLS.”

Several correspondents identified poor planning as a problem. The doctor who favoured guardianship said that before resorting to the DoLS, everyone “should consider first whether they could change the care plan so that an individual was not being deprived of their liberty - emphasis on choice, few restrictions and keeping relatives on side.” One DoLS lead, however, saw this differently: “care managers drag their heels trying endless means of pacifying anxious service-users, only resorting to a DoLS referral after about three months of perseverance.” Far from it being necessary to keep relatives onside, she said most are “fearful of the possibility of loved ones being discharged to their care, and therefore their views about whether there is deprivation of liberty are somewhat distorted”.

This correspondent said that recently, “a wife told an assessor that her husband was absolutely fine, rarely spoke of wishing to leave the care home and could easily be persuaded to behave. This was in stark contrast to what had actually been occurring.”

Inadequate recording was also identified as a problem, not least by this same DoLS lead: “One of our referrals … failed due to insufficient evidential logging of the service-user’s behaviour. This raises the question: given that few care homes are meeting the guidelines for accurate and consistent recordings, will we ever be able to evidence a deprivation of liberty?”

Finally, several correspondents agreed that uncertainty about deprivation of liberty itself is a significant problem, and that different assessors might take different views, especially in more complex cases. A DoLS lead said, “I conclude that unless a person is shouting ‘let me out’ from the rooftops, wrestling staff to the floor and needing to be sat on, constantly making an opportune exit through any open door or needing heavy sedation to control their behaviour, it is just not obvious enough to amount to deprivation of liberty.”

The Deprivation of Liberty Safeguards continue to excite great debate, even if – or maybe because – they are so rarely encountered. From my own postbag, however, it seems that views are polarised, and that some people are profoundly dis-satisfied, both with the purpose of the DoLS and with the way they are used.

(A shorter version of this post appeared as a letter in the New Law Journal.)