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.
Notes
It may still be wise for a DOLS authorisation specifically to include contact sessions if the journey might amount to a deprivation of liberty. Also, ss5 and 6 only permit restraint in prescribed circumstances.
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.
Other
Hearing: 11 September 2009
Before: District Judge O'Regan
Alexis Hearndon (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)
External link
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