View source for 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 [[MCA 2005 s6|s6]] permitted restraint. (3) The interim residence order should be enough to persuade the police to facilitate P's return.''

==Notes==
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==
{{Text:DH summary of DCC v KH (2009) COP 11729380}}

==Other==
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)

==Citations==
Re KH, DCC v KH, PJ and others (District Judge O’Regan, Birmingham County Court, 11 September 2009)

==Thanks==
{{thanks|Davidson, Laura|No 5 Chambers|providing the transcript and helping with the summary}}

==External links==
{{#bailii:no ncn}}

[[Media:DCC v KH (2009) COP 11729380.tif|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

[http://www.dh.gov.uk/en/Healthcare/Mentalhealth/DH_111770 Dept of Health: Briefings on legal cases, 2/2/10] - including summary of this case

[[Judiciary of England and Wales, 'Court of Protection: 2009 report' (10/6/10)]] - Summary on page 16


[[Category:Deprivation of liberty]]
[[Category:Brief summary]]
[[Category:Transcript]]
[[Category:2009 cases]]
[[Category:Judgment available on MHLO]]