Mental health law briefing 156 – Deprivation of Liberty: The Court rules on restraint and transportation

Although the Deprivation of Liberty Safeguards (DoLS) have been in force for a while, issues still arise on their implementation. Useful guidance has recently been given by the court [1] on the use of DOLS and restraint where an individual requires transportation.

Facts

The case concerned a young man, KH, who was resident in a care placement and subject to a standard authorisation under the Deprivation of Liberty Safeguards. On occasions KH visited his mother who lived approximately 100 miles away, and was due to do so on the weekend immediately after the hearing of the application in this case.

The Application to the Court was made because in the week running up to KH’s proposed visit to his mother, he had assaulted staff at the care facility, and had also indicated to staff that when he went to his mother’s house at the weekend, he did not intend returning to the care placement. As a consequence, staff were concerned about their legal powers to forcibly restrain KH and return him to the placement, should that be required at the end of his visit.

The Care Home were aware of the guidance in the Code of Practice for the Deprivation of Liberty Safeguards at paragraphs 2.14 and 2.15, which reads as follows:

“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 would 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 would be in their best interests….. 

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.”

In light of the above guidance, the care provider was concerned about whether the Standard Authorisation under the Deprivation of Liberty Safeguards provided sufficient authority for care staff to bring KH home at the end of his visit to his mother, and if need be, use physical restraint if he refused.

Ruling of the Court

The Judge found that the Application was not necessary. It was the Judge’s view that the paragraphs in the Deprivation of Liberty Safeguard Code of Practice referred to above, addressed a situation where there was no Standard Authorisation yet in force, but that where one was in force, that provided sufficient authority to undertake the transportation.

It was also the Judge’s view that it was inappropriate for an anticipatory declaration from the court in advance of the use of restraint. The Judge concluded that the provisions of Sections 5 and 6 of the Mental Capacity Act 2005 (which allow for proportionate restraint in an incapacitated individual’s best interests), were sufficient in the case to allow for restraint to be used. The evidence before the Judge was that KH lacked capacity to decide where he should live. There was evidence to show that it was in his best interests to reside at the care placement. Accordingly the Judge found that it was “perfectly proper for appropriate restraint to be used whether with or without the assistance of the Police, because of its being in his best interests”.

Comment 

The case is of particular interest to those managing individuals subject to the Deprivation of Liberty Safeguards, as it confirms that a Standard Authorisation empowers staff to bring an incapacitated individual back to a unit, even if they resist. It also confirms that even where no Standard Authorisation is present, the provisions of Sections 5 and 6 of the Mental Capacity Act will potentially provide sufficient authority for staff to use proportionate restraint where it is considered in a incapacitated person’s best interest to return them to a particular care placement.


Footnote
[1] DCC –vKH & Others case number: 11729380 


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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