Deprivation of Liberty Safeguards (DoLS), Coroner Referral and Death Certification 

This resource provides advice on the process should a patient die while under a DoLs authorisation or MCA deprivation

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Background 

 In 2014, two Supreme Court rulings significantly broadened the interpretation of “state detention” to include patients deprived of their liberty under the Mental Capacity Act (MCA), whether through a DoLS authorisation, a Court of Protection Order, or another MCA provision. As a result, any death occurring while a patient was under such an authorisation was considered a death in state detention and had to be reported to the Coroner under Section 1 of the Coroners and Justice Act 2009. 

This led to a sharp increase in inquests, even where the death was clearly from natural causes and fully expected—particularly among older adults with dementia in care settings. The process was distressing for families and burdensome for coronial services. 

Key Point

A death occurring whilst a patient is subject to a DoLS authorisation does not automatically require an inquest. However, referral to the Coroner may still be required depending on the circumstances of the death and local arrangements. Medical Examiners can advise on the appropriate process.

Change in the Law – April 2017 

From 3 April 2017, the Police and Crime Act 2017 amended Section 48 of the Coroners and Justice Act. This change removed the automatic requirement for Coroners to hold an inquest simply because a person died while subject to a DoLS authorisation or other MCA deprivation of liberty provision. 

Current Guidance and Practical Advice

While the automatic inquest requirement has been rescinded, the duty to notify the Coroner remains in any of the following circumstances: 

  • The death is violent or unnatural
  • The cause of death is unknown or cannot be confidently ascertained
  • There is concern that a failure of care may have contributed to the death
  • There is a local requirement to notify deaths of patients subject to a DoLS (some Coroners may request notification even if an inquest is not required)
  • The death occurs shortly after an Urgent Authorisation expires (as some Coroners consider this still relevant) 

The Role of Medical Examiners 

Medical Examiners now have a statutory role in scrutinising deaths that are not investigated by the Coroner and can provide advice regarding the need for Coroner notification. In cases involving DoLS authorisations, local Medical Examiner teams may be the appropriate first point of contact to: 

  • Review the case
  • Advise whether the death meets the criteria for Coroner notification
  • Liaise with the Coroner’s Office where necessary 

You can find more information about the Medical Examiner system here: 
NHS England – The National Medical Examiner System 

GP Practice Advice 

  • If a patient dies while under a DoLS authorisation or MCA deprivation, you may still need to inform the Coroner depending on local arrangements and the clinical circumstances. 
  • Contact the local Medical Examiner’s Office in the first instance where this is the expected pathway, especially if you are unsure whether a Coroner referral is required. 
  • Be prepared for the Coroner’s Office (or Medical Examiner) to contact the GP to determine whether a death certificate can be issued. Follow usual procedures and seek guidance if uncertain. 
  • Residential and nursing homes are generally familiar with DoLS notification procedures, but GPs (including those working in Out of Hours services) should remain aware of their responsibilities. 
  • If in doubt, report the death or seek advice from the Medical Examiner. It is safer to do so than to risk non-compliance with statutory obligations. 

I am writing to all colleagues to highlight the impending intended statutory implementation of Medical Examiner scrutiny of non-coronial deaths in the Community.  This process was supposed to be implemented in April 2023, but was postponed because the service was not ready.  It is now scheduled for implementation from April 2024.

I will not rehearse in detail the intended role of Medical Examiners and there is considerable background information available.

In summary, Medical Examiners are supposed to answer the following questions:

  • What was the cause of death of the deceased?
  • Does the Coroner need to be notified of the death [GPs can still refer directly to the coroner if appropriate, although increasingly Coroners Offices are likely to suggest such referrals are initially discussed with a Medical Examiner]
  • Was the care provided to the deceased before death appropriate?

In order to answer these questions, Medical Examiners are supposed to undertake a review of:

  • The pre-existing medical records – in practice a recent sample is likely to be requested
  • The information provided by the GP completing the Medical Certificate of Cause of Death together with a discussion with the GP if this would be helpful to either party.
  • Any information provided by the bereaved, including offering an opportunity to ask questions and raise concerns.

All GP practices need to know which Medical Examiner (ME) Unit they are supposed to refer deceased patients details to, and how to provide this information.  Unfortunately, although there are guidelines in terms of how the Medical Examiner process should work, there is no consistent England-wide implementation of these, and so there will be a variation across the SSLMC area. In part this variation also relates to the IT system used by the practice.

All GP practices should therefore, if this link is not yet in place, contact their local hospital ME Unit to confirm that there needs to be a link with that practice; the ME Unit should advise how to transfer information, including the proposed MCCD, to the Medical Examiner for scrutiny. The LMC and GPCE are seeking to ensure this does not represent an additional administrative burden, and the LMC should be contacted if this is the case. ME Units are responsible for their own timescales, which may be a significant factor for some bereaved faith groups, and interaction with the bereaved, including any concerns or complaints not merely about the care of the deceased, but also about the process.  If a Medical Examiner wishes to speak directly with a GP about a deceased patient, the LMC suggests this is booked as one of your 25 – 35 BMA Safe Working Guidance daily appointments, as GP involvement in the Medical Examiner process is not separately resourced.

Alongside the implementation of the Medical Examiner scrutiny outside hospitals, the Medical Certificate of Cause of Death Regulations are also being updated; these have been published in draft [but are unlikely to be amended significantly] alongside an overview of the changes, as below.

The key issues for GPs are:

  • The responsibility for completing a MCCD remains the “attending practitioner” using information available from a patient’s medical records, any physical examination that has taken place, and any other information thought relevant.
  • If a cause of death cannot be completed the death must be referred to the Coroner.  If the Coroner decides not to investigate, they will advise the attending practitioner who will then be expected to submit an MCCD to a Medical Examiner, as directed by the Coroner. The attending practitioner can then discuss a proposed cause of death on the MCCD with the Medical Examiner. Alternatively, the attending practitioner can discuss a possible referral to the Coroner with a Medical Examiner initially, and it is likely Coroner Offices will increasingly expect this.
  • Once a MCCD has been prepared, this must be passed to a Medical Examiner, together with “the deceased persons relevant health records”; in practice the ME Unit should be requesting a limited, recent sample of the records only, with the summary of active clinical problems and current medication two of the most helpful items of information

None of these processes apply if the coroner has already accepted responsibility for investigating the death or themselves referred the death to a Medical Examiner.

  • The attending practitioner must respond to any queries the ME may have [“as far as reasonably practicable”] although there is provision for another attending practitioner to substitute if the first cannot undertake their duties “within a reasonable time”.
  • If the Medical Examiner is satisfied, after enquiry, with the submitted MCCD they should sign it, thus confirming the cause of death given.
  • In this case, the Medical Examiner should then [“without unreasonable delay”] notify a Registrar that the cause of death has been confirmed.
  • If the Medical Examiner believes the submitted MCCD needs to be revised, they must discuss this with the attending practitioner, giving reasons. If no agreement can be reached the matter will be referred to the Coroner.
  • The Medical Examiner must also inform a person with whom they have discussed the death (which is in practice likely to be a member of the deceased family) so that the registration of death can be arranged by the informant.

Thus, the main change is that GPs must share the MCCD with the proposed cause of death with the Medical Examiner, for scrutiny (as above) before this can be submitted to the Registrar.  However, Medical Examiners can, in exceptional circumstances, issue a Medical Examiner MCCD, when no attending practitioner can be identified by the Coroner. 

A new paper MCCD will be available by April 2024, with an electronic version in preparation. This will include the following additional details: –

  • Details of the Medical Examiner who scrutinised the cause of death.
    • Ethnicity if and as self-declared by the patient on their medical record.  If this is not available, the attending practitioner should complete it as “unknown”, and not ask anyone else for this informationReference to maternal death and a new line 1d, to align with international comparisons.
    • Medical devices and implants to be recorded on the MCCD by the attending practitioner.

The Cremation Form 4 is being abolished; and information about devices and implants will be included within the newly designed MCCD and completed by the attending practitioner. The private Form 4 fee will therefore no longer be payable.

Medical Examiners currently have access to deceased patients records via Section 251 of the NHS Act 2006, following recommendations of the Health Research Authorities Confidentiality Advisory Group; following the introduction of the new Regulations, Medical Examiners will have a right to access medical records under Section 3 of the Access to Health Records Act 1990 as amended by the Coroners and Justice Act 2009.

Based on feedback, the LMC is not assured the Medical Examiner process will work, as indeed it did not in March/April 2023; a number of other LMCs have fed back the same concerns and therefore I have asked myself whether the responsible GPC England Deputy Chair should write to the National Medical Examiner expressing these concerns, and have decided this seems an excellent idea, so I will do so

The LMC will also contact local Medical Examiner Leads to confirm they have links with all local GP practices and robust processes in place, which do not create an inappropriate administrative burden, to transfer information as required. However, I would also ask individual practices to contact their local ME Units to request these arrangements are in place if they are not currently

Dr Julius Parker Chief Executive

As colleagues will recall, the original date for implementing these arrangements was April 2023, after many concerns were raised, this was ultimately postponed until April 2024, but as this date approached it became clear, without any official announcements from the National Medical Examiner or the Ministry of Justice, that reliable arrangements to ensure all community deaths were covered by local Medical Examiner Units were not in place. The Health Minister has now announced that the statutory introduction of these changes will now be delayed until 9th September, to allow “time to prepare for implementation”. This presumably represents a euphemism for “still not ready”.

This means the use of the Medical Examiner system by GP practices will not be universal, and the current unsatisfactory hybrid process will continue. If your practice has been “on-boarded” by local ME Units, you can continue to refer draft MCCDs and accompanying information about the deceased to the Unit. However, you are not obliged to do so, although if the process is operating smoothly, the LMC recommends colleagues continue. GP practices should give feedback on any concerns, including advising patients to contact MEs directly, in order to ensure this facilitates learning and improvements to the service.

If your practice continues to refer all, or a proportion, of deaths to local Medical Referees, then colleagues can continue to do so over the coming months. ME units should be contacting practices not linked to their service to set up arrangements for GP referral of deaths for ME scrutiny.

I last wrote to all colleagues about this issue about the Medical Examiner and MCCD Update on 24th January 2024 (above) and I know colleagues will forgive me if I say on rereading this, the LMC seems to have been prescient: the LMC did not feel, at that time, that “the Medical Examiner Process will work” on its then intended implementation on 1st April 2024. The linked letter dated 24th of January confirms details of how the Medical Examiner led process will operate and what it is seeking to achieve. The LMC cannot feel assured it will work in September 2024, although it is possible the promised digital MCCD may be available by then.

Although I appreciate there are GP practices where this process is working well, at present it would seem premature to guarantee all will be well for everyone by September 2024.

Dr Julius Parker Chief Executive

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