DCC v KH (2009) COP 11729380
(1) A DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to the residential accommodation: the Code of Practice paragraphs saying that conveyance may require a court order only apply where no SA is in place. (2) It was inappropriate to seek an anticipatory declaration for the use of force, as MCA 2005 s5 and s6 permitted restraint. (3) The interim residence order should be enough to persuade the police to facilitate P's return.
Conveying a person to residential or other accommodation often involves restraint, which may amount to a deprivation of liberty. The use of restraint is not unlawful in principle but the level of restraint used must be proportionate. Based on this case: (1) where the conveyance amounts only to restraint, it is permitted under s5/6; where it amounts to a deprivation of liberty, it is permitted under a DOLS authorisation (or, equally, a CoP residence order); (2) although the case involved return from contact sessions, the principle probably applies to any scenario, including the initial journey to the accommodation or return from wandering. There is an alternative view that the case was wrongly decided and that a court order should be sought for initial conveyance if it is likely to amount to a deprivation of liberty.
Code of Practice
Here is the relevant extract from the MCA DOLS Code of Practice:
Taking someone to a hospital or a care home
2.14 Transporting a person who lacks capacity from their home, or another location, to a hospital or care home will not usually amount to a deprivation of liberty (for example, to take them to hospital by ambulance in an emergency.) Even where there is an expectation that the person will be deprived of liberty within the care home or hospital, it is unlikely that the journey itself will constitute a deprivation of liberty so that an authorisation is needed before the journey commences. In almost all cases, it is likely that a person can be lawfully taken to a hospital or a care home under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests.
2.15 In a very few cases, there may be exceptional circumstances where taking a person to a hospital or a care home amounts to a deprivation of liberty, for example where it is necessary to do more than persuade or restrain the person for the purpose of transportation, or where the journey is exceptionally long. In such cases, it may be necessary to seek an order from the Court of Protection to ensure that the journey is taken on a lawful basis.
Summary from Court of Protection 2009 Annual Report
This was an emergency application heard by the District Judge in a telephone hearing on 11 September 2009. By an order dated 28 August 2009 provision was made for KH, a young man, to have increasing levels of contact with his mother, PJ. KH had threatened that when he went to see his mother on Monday 14 September, he would not return to his placement. DCC, the local authority, sought an order under the DOLS legislation enabling it to deprive KH of his liberty for the purpose of returning him to his placement, 100 miles away. The application was resisted by the Official Solicitor on behalf of KH. DJ O’Regan held that the application was not necessary because there was already a standard authorisation in place which was sufficiently wide to cover the purposes of the contact visit.
Dept of Health summary
KH, who was placed in AH under a Standard Authorisation under MCA DOLS, is the subject of an order that permits increasing levels of contact between him and his mother. He had indicated that he might not return to AH from a contact visit to his mother’s home. The local authority sought a declaration that would permit the necessary restraint to return him to AH if in the event he refused to go.
The Court of Protection found that a declaration in these circumstances was not required.
In paragraph 10 of the judgment, the Court supported the view of the Official Solicitor that a Standard Authorisation when in force is said to be sufficient protection for the return of a person to the care home or hospital, where the deprivation of liberty has been authorised, without any additional authority. It also agreed with the Official Solicitor that paragraphs 2.14 and 2.15 of the DOLS Code were addressed to the situation where there is not yet an authorisation in force.
This judgment suggests that permission from the Court is not required when returning somebody who may be resisting to the place where there is a Standard Authorisation for him or her to be deprived of his or her liberty. This also fits with the guidance in the Code at paragraph 2.14 and 2.15 that addresses the situation where no authorisation is yet in place at all. As the Code provides "In almost all cases, it is likely that a person can be lawfully taken to a hospital or care home under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests."
Hearing: 11 September 2009
Before: District Judge O'Regan
Alexis Hearnden (instructed by Weightmans LLP) for the Applicant (DCC - local authority)
Laura Davidson (instructed by Anthony Collins) for the First Respondent (KH - P)
Stephen Mullarkey of Stephen Mullarkey Solicitors for the Second Resondent (PJ - mother)
The Third Respondent (AH - residential home) and Fourth Respondent (FCC - local authority in mother's area)
Re KH, DCC v KH, PJ and others (District Judge O’Regan, Birmingham County Court, 11 September 2009)
Thanks to Laura Davidson (No 5 Chambers) for providing the transcript and helping with the summary.
No Bailii link (neutral citation is unknown or not applicable)
Transcript, courtesy of P's barrister - If only first page of this TIF file shows then download file to your computer and open from there
Dept of Health: Briefings on legal cases, 2/2/10 - including summary of this case
Court of Protection: 2009 Report - published 10/6/10 - Summary on page 16