Re MP; LBH v GP (2009) FD08P01058

(1) MP, who suffered from a learning disability and lacked capacity as to residence and contact, was removed from his mother's accommodation and conveyed by the police to a care home. On the facts, there was presently no deprivation of liberty and it was in MP's best interests to remain at the care home with the existing contact regime continuing. (2) Guidance was given, subsequently approved by the President of the Family Division and Court of Protection, for cases where a vulnerable or incapacited adult requires to be removed from premises with the help of the police.


The guidance is as follows:

In the event that it is expected that the assistance of the Police may be required to effect or assist with the removal of a vulnerable/ incapacitated adult (“P”) which the Court is being asked to authorise, the following steps should generally be taken:
(1) the Local Authority/NHS body/other organisation/person (the Applicant) applying to the Court for an authorisation to remove P should, in advance of the hearing of the Application, discuss and, where possible, agree with the Police the way in which it is intended that the removal will be effected, to include, where applicable, the extent to which it is expected that restraint and/or force may be used and the nature of any restraint (for example, handcuffs) that may be used;
(2) the Applicant should ensure that information about the way in which it is intended that removal will be effected is provided to the Court and to the litigation friend (in cases where a person has been invited and/or appointed to act as P’s litigation friend) before the Court authorises removal. In particular, the Court and the litigation friend should be informed whether there is agreement between the Applicant and the Police and, if there is not, about the nature and extent of any disagreement;
(3) where the Applicant and the Police do not agree about how removal should be effected, the Court should give consideration to inviting/directing the Police to attend the hearing of the Application so that the Court can, where appropriate, determine how it considers removal should be effected and/or ensure that any authorisation for removal is given on a fully informed basis.


In deciding that there was no deprivation of liberty, when considering the objective and subjective elements as identified in JE v DE and Surrey County Council [2006] EWHC 3459 (Fam), the following factors were taken into account: (a) in relation to the objective element, that the local authority's position was that they were not presently authorised to keep MP against his will and that if he tried to leave their next step would be an urgent application to the court for authorisation to deprive him of his liberty; and (b) in relation to the subjective element, that although MP lacked capacity to decide, there was plentiful evidence of consent. (At first glance the former may appear to be slightly inconsistent, and the latter to be against the notion that without capacity a person cannot give valid consent.)

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