Mental Capacity Act 2005 code of practice.London: TSO; 2007

Lawfully admitting a person who lacks decision-making capacity to hospital

14 February 2019
Volume 28 · Issue 3


Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the legal options available to a nurse who believes their patient should be moved from home to hospital for treatment when the person lacks decision-making capacity to consent to the move

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.

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