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Mental Capacity Act practice guidance

Part 20

Conveying someone to hospital or residential care

Deprivation of Liberty Safeguards Code of Practice 2.14 and 2.15

If a best interests decision has been made that someone should be admitted to hospital or residential care it’s usually possible to move someone using an MCA best interests decision because it is in their best interests to be moved.

A separate capacity and best interests decision needs to be made to cover conveying the person from one place to the next. This will need to be completed by the person who has made the best interests decision about the admission. (Part 6: How to assess capacity) (Part 8: Best interests decisions)

A best interests decision will give legal cover to anyone moving a person who lacks capacity. (Part 12: Legal protection when applying MCA)

Many people will be able to comply with the decision that they should get into a car or ambulance. Do everything you can to support them and explain why, arrange for a family member or friend to accompany them and make sure that they have significant belongings with them. It may help to be clear that they must go, rather than asking if they want to go. It may be necessary to take the person’s arm to lead them to the car or ambulance to persuade them to go. This may amount to restraint which is acceptable under MCA section 6. (Part 14: Restraint)

The Deprivation of Liberty Safeguards Code of Practice (2.14) is clear that transporting someone into hospital or a care home will not usually be considered a deprivation of their liberty, even if it is expected that the person will be deprived of their liberty once they are in the hospital or care home.

If someone can’t be conveyed under a best interests decision process, consider if a Guardianship Order would be appropriate. A Guardianship Order (MHA section 7) gives authority to convey someone to the place it has been decided they need to live and can give ambulance crew the necessary authority to take someone against their wishes. A Guardianship Order will usually only be issued if it will be needed to support the person to remain in the home once they have moved. To explore this possibility contact your local Approved Mental Health Practitioner service. (Contact details)

Applying for a Guardianship Order is a lengthy and complex piece of work.

If the person can’t be supported and persuaded to comply with the decision to convey them and Guardianship is not appropriate, to force them against their wishes to travel elsewhere could amount to a deprivation of their liberty. Nothing in the act allows for a person to be deprived of their liberty (MCA section 4A) unless this is sanctioned by order of the Court of Protection or authorised using the Deprivation of Liberty Safeguards. As the Deprivation of Liberty Safeguards do not apply outside of registered care setting, it may be necessary to urgently apply to the Court. The Court of Protection can then make a decision that the person should be transported even if this deprives them of their liberty (DoLS Code of Practice 2.15) (Part 23: The Court of Protection)

There is a local protocol for the use of ambulance transport under MCA which explains the responsibility of the decision-maker to record someone’s capacity to decide about the conveyance, the need to plan the move and to give information to the ambulance service. Remember that ambulance crews also use MCA all the time and may make their own assessment of someone’s capacity. The protocol includes a form designed to give authorisation for ambulance crews to convey someone in their best interests.

In an emergency, decisions will be made by relevant people. Ambulance crew, for instance, will convey someone who is not able to consent to going to hospital by making a swift judgement about their capacity or using the common law doctrine of necessities. (Part 29: Emergencies)

If there is an emergency situation and someone is at serious risk call for police or ambulance support immediately.

Ambulance crews are only protected against the possibility of depriving someone of their liberty if the situation is a genuine emergency which requires the giving of life sustaining treatment or of a vital act to be carried out to stop a serious deterioration in the patient’s condition (MCA section 4B). This means they are unlikely to be able to assist in the removal and transportation of someone with a chronic long-term condition who is resisting a request to go in to hospital or a care home.