Since the repeal of the National Assistance Act 1948, section 47, which provided for a magistrate to order the removal to suitable premises a person in need of care and attention, health professionals have been unclear about their authority to move a person who lacks capacity to hospital where that person appears unwilling to leave their home.
Although there is no direct replacement for the power to remove a person in need of care and attention to suitable premises, the Mental Capacity Act 2005 does offer an alternative legal remedy in cases where nurses are faced with an adult who refuses to go to hospital for the treatment of a physical disorder but who lacks decision-making capacity. The Mental Capacity Act 2005, section 5, allows a nurse to carry out an act in connection with the care and treatment of a person who lacks capacity, as long as it is in the best interests of that person. This provision is sometimes referred to as care and treatment protection.
Arranging admission for the treatment of a physical disorder
A nurse acting in the best interests of an incapable adult would not incur liability for arranging the admission of that person to hospital for care and treatment, even where they appeared to object if the nurse were acting in accordance with the Mental Capacity Act 2005, section 5.
The Mental Capacity Act 2005 Code of Practice says:
‘In some cases, there may be no alternative but to move the person. Such a move would normally require the person's formal consent … In cases where a person lacks capacity to consent, section 5 of the Act allows carers to carry out actions relating to the move—as long as the requirements for working out best interests have been followed. This applies even if the person continues to object to the move.’
In DH NHS Foundation Trust v PS [2010] the Court of Protection authorised an NHS trust to use force to sedate and convey a patient to hospital to ensure that she underwent necessary and potentially life-saving surgery in circumstances where she not only lacked capacity but suffered from phobias of hospitals and needles. The judgment was made in open court to help health bodies facing similar situations to plan for the safe removal of an incapable patient to hospital for treatment without the need to come to court.
Removing an incapable person to hospital where the family objects
The situations envisaged by the Code of Practice and the Court of Protection in DH NHS Foundation Trust v PS [2010] are those where informal carers and family members agree that the person needs to have hospital treatment in their best interests and co-operate with the nurse. Where family members object and restrict access to the incapable person then it may be necessary to seek an urgent order from the court of protection before removing the person.
In LBH v GP (2010) the court of protection issued an order authorising the removal of a man with learning disabilities, who had dental and medical problems, from the care of his mother in his best interests because she was providing him only with basic clothes and sustenance. The case caused some controversy because the assistance of the police had been requested, with the police subsequently arriving in numbers wearing riot gear and removing the man in handcuffs.
It is not uncommon, to ensure the safety of nurses and ambulance staff, that police are asked to assist in removing a person to hospital. Where this is now necessary the Court of Protection requires that:
Judges of the Court of Protection are available in urgent situations out of court hours and can deliver an interim judgment at short notice, as long as there is sufficient evidence that it is reasonable to believe the person lacks capacity to make the decision and the proposed admission and treatment are in the person's best interests (b County Council v SRK & Ors [2016]). In cases of real emergency, where there is no time to make even an urgent out-of-hours application to the Court, the guidance of the Court of Protection is to remove the person to hospital, then make an application to the Court of Protection to seek approval of the actions taken in that emergency situation (A local authority v C [2010]).
Removal of someone resisting treatment for a mental disorder
Where the need to remove a resisting person to hospital is for the treatment of a mental rather than a physical disorder, the provisions of the Mental Health Act 1983 must be used even where the person lacks decision-making capacity. It has been a long-standing government policy decision that, where a person resists admission for the treatment of their mental disorder, the provisions of the Mental Health Act 1983, which gives safeguards to ensure that the person is detained and removed only following medical recommendation(s) and an application by an Approved Mental Health Professional or the patient's nearest relative, must be used regardless of the person's capacity to consent (DN v Northumberland Tyne and Wear NHS Foundation Trust [2011]).
The police are also forbidden from removing a resisting person from their home to a hospital where this is required for the treatment of a mental disorder. In R (Sessay) v South London & Maudsley NHS Foundation Trust [2011] police officers attended a woman's private house following a complaint that she had not been caring properly for her child. They determined that the woman lacked capacity and was mentally disordered and, with concerns for her and her child's welfare, the officers took the child into custody and took the woman to hospital relying on the Mental Capacity Act 2005, section 5. On arrival at the Mental Health Unit, the woman was taken to a suite reserved for admissions under the Mental Health Act 1983 and staff were given to understand that she had been admitted under one of the provisions of the Mental Health Act 1983. During the course of the day doctors determined that the woman was suffering from a mental disorder warranting her detention and noted that she was not agreeable to informal admission. A recommendation for compulsory admission under section 2 of the 1983 Act was made and accepted by the hospital managers some 13 hours later. She argued that her removal from home and her detention during that time was unlawful.
The court agreed and held that the police should have arranged for the woman's detention under the Mental Health Act 1983 before removing her to hospital. The 1983 Act provides a complete statutory framework for the compulsory admission of non-compliant mentally incapacitated patients for the purpose of assessment and treatment of their mental disorder, so the powers available to the police under the Act could not be supplemented by reliance on the Mental Capacity Act 2005 or the common law.
Conclusion
The repeal of the power to remove an adult in need of care and attention to a suitable place under the provisions of section 47 of the National Assistance Act 1948 has left nurses without a specific power to lawfully facilitate the admission of an objecting patient in need of treatment to hospital.
Where the objecting person lacks decision-making capacity, the scope of section 5 of the Mental Capacity Act 2005 will protect nurses. Where the objection is also raised by the patient's carers or family, it is usually necessary to seek the Court of Protection's authority before removing the person, unless it is an emergency.
Where the need for admission is to treat a mental disorder, the civil detention powers of the Mental Health Act 1983 must be used regardless of the objecting person's decision-making capacity.