Last resort

Recently, I was instructed by a local authority seeking the removal of a person thought to lack capacity (T) to alternative accommodation in her best interests. T's mother vehemently objected to her daughter's move from the family home. The social worker believed that T might become so distressed during the move that a sedative might be required to effect it. Although it was considered likely that T would be compliant with her reassurance, her mother's active objection was anticipated. However, the Official Solicitor who represented T as litigation friend resisted an order permitting the administration of sedation '“ in part, it is understood, because he was concerned not to set a precedent.

T was moved to a respite centre overnight with her mother's consent to enable her attendance at court the following day, and so the need for sedation and the question whether it might be lawful in fact did not arise. In any event, T's GP had indicated that he would be uncomfortable using sedation for the purposes of restraint. A subsequent declaration was made that it was lawful and in T's best interests for her to be moved to hospital for assessment, but the order specified that although restraint could be used to effect the move, sedation could not. In the end, T was distressed by neither the move to overnight respite care nor the subsequent transfer to hospital.

Nonetheleass, the court clearly has jurisdiction to authorise physical restraint to move a non-consenting incapacitated person (or those from whom resistance is anticipated) to alternative accommodation (see A PCT v P, AH and A Local Authority [2008] EWHC 1403 (Fam); Surrey County Council v MB and Others [2007] EWHC 3085 (Fam)). However, while the courts have grappled with what might amount to a deprivation of liberty in terms of the conditions of residence, as yet there has been no specific adjudication on the fine line between restraint and deprivation of liberty when effecting a move. Two judgments which may assist on the issue are imminent, and no doubt will form the basis of a further article in due course.

Paragraph 6.11 of the Code of Practice to the MCA (the main code) permits restraint where it is necessary 'to transport the [non-consenting incapacitated] person to their new home' provided that the method used is proportionate to the likely harm. This is because section 6 of the MCA does not permit restraint unless it is reasonably believed to be 'necessary to do the act in order to prevent harm to P' (section 6(2)), and the act is 'proportionate' to the likelihood and seriousness of harm to P absent its use (section 6(3)). The latter of these two conditions reinforces the principle of least restriction as stated in section 1(6).

In April 2009, the Deprivation of Liberty Safeguards (DOLS) came into force to plug the Bournewood 'gap' in order to protect incapacitated people from arbitary detention. Before this, instead of being sectioned, non-dissenting incapacitated patients were considered 'informal' patients because they were not compliant. Thus, the safeguards which protected their sectioned counterparts did not apply to them. Authorisations are now required where those lacking capacity are being deprived of their liberty to ensure that residents 'detained in a hospital or care home for the purpose of being given care or treatment' have sufficient safeguards (paragraph 1(2), schedule A1 to the DOLS Code). There are now statutory checks and reviews of the need for detention in a resident's best interests. Plainly, however, such an authorisation is not intended to be used for the purposes of transporting a person to a care home or hospital.

Deprivation of liberty

Paragraph 2.3 of the DOLS Code suggests that because the difference between deprivation of liberty and restriction upon liberty is one of degree or intensity (see Engel v Netherlands (1979-80) 1 EHRR 647) 'it may'¦be helpful to envisage a scale, which moves from 'restraint' or 'restriction' to 'deprivation of liberty''. However, paragraph 2.14 states: '[t]ransporting 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).' Further, it is suggested 'the wider provisions of the Act' usually will be sufficient if such a move is in someone's best interests, and so a pre-journey authorisation will be required rarely.

For the DOLS Code to suggest that coercing an incapacitated person into a vehicle against their wishes '“ particularly if resistance continues throughout the transportation '“ would 'not usually' amount to a deprivation of liberty may seem surprising. A layman would probably describe such a scenario as a false imprisonment. It is perhaps better understood as a legal fiction to permit short deprivations of liberty in someone's best interests. Indeed, paragraph 2.11 of the DOLS Code states that 'actions that are immediately necessary to prevent harm may not, in themselves, constitute a deprivation of liberty'. The ECtHR has held that depriving someone of their liberty for a short time in an emergency does not constitute a violation of article 5 (X v United Kingdom (1981) 4 EHRR 188 at 41). The length of any journey is relevant because the duration of the measure must be taken into account in assessing whether a restraint is sufficiently severe to amount to a deprivation of liberty (see Engel v Netherlands). Where the line is drawn is somewhat arbitary.

Paragraph 2.15 of the DOLS Code, however, admits that '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 purposes of transportation, or where the journey is exceptionally long' [emphasis added]. In such circumstances, court endorsement may be necessary. Unfortunately, it is entirely unclear what 'more', beyond 'persuasion' or 'restraint', might be required.

English law permits a short liberty deprivation in an incapacitated person's best interests under the common law doctrine of necessity. While criticised as arbitrary by the ECtHR on the facts of HL v United Kingdom (2004) 40 EHRR 761, it remains a valid legal principle. Paragraph 6.43 of the main code suggests that the common law allows staff to 'take appropriate and necessary action to restrain or remove the person, in order to prevent harm, both to the person concerned and to anyone else', where challenging behaviour is likely to cause harm. Nonetheless, the main code insists that the common law provides insufficient grounds for an action that effectively deprives someone of their liberty.

However, there appears to be no reason in principle why the doctrine of necessity cannot be used to justify a short deprivation of liberty. In Re A (Conjoined Twins: Medical Treatment) CA (Civ Div) 22 September 2000, Brooke LJ held that 'the existence of an emergency in the normal sense of the word is not an essential prerequisite'¦ The principle is one of necessity, not emergency.' Brooke LJ appeared to approve three suggested prerequisites. The proposed actions must be: necessary to avoid inevitable and irreparable harm, proportionate to that harm, and no more than reasonably necessary to achieve the purpose (paragraph 96).

Weighing the benefits against the disadvantages

Notwithstanding the fact that the DOLS were not intended for the purpose, the administration of sedation to effect removal where absolutely necessary appears to have been envisaged. Paragraph 2.5 of the DOLS Code lists various non-exhaustive factors which may be 'relevant to identifying whether steps taken involve more than restraint and amount to a deprivation of liberty', one of which is the use of 'restraint'¦ including sedation, to admit a person to an institution where that person is resisting admission'.

In Trust A v H (an Adult Patient) [2006] EWHC 1230, the court held it lawful 'to overcome non-cooperation of a resisting patient by sedation and a moderate and reasonable use of restraint' in order to provide treatment in the patient's best interests. The 'benefit and disadvantage' of the proposed medical treatment must be considered in accordance with the balance sheet approach advocated by Thorpe LJ in In Re A (Male Sterilisation) (2000) 1 FLR 54). Further, where someone is 'actively opposed'¦ the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against his wishes, especially if force is required to do this' (R v RMO Broadmoor Hospital & Others, ex parte Wilkinson (2001) EWCA Civ 1545). However, would the same principles apply to someone who is not a 'patient', but rather an incapacitated person being moved in their best interests to another place of residence contrary to their wishes?

In HL v UK the ECtHR held 'the key factor' in finding a deprivation of liberty was 'that the healthcare professionals treating and managing the applicant exercised complete and effective control over his care and movements'. It is difficult to think of a situation where a person is more completely under the control of another than where they have been sedated. Common sense suggests that sedating someone with the intention of incapacitating their ability to resist will deprive them of their liberty. Whether the sedation renders that person unconscious, merely relaxes them to the point that they no longer object, or makes them incapable of resistance matters not.

However, one can imagine a scenario where the use of sedation to effect a move to hospital for emergency treatment might be 'necessary' for the provision of life-sustaining treatment or the undertaking of a 'vital act' under section 4B MCA '“ for example, where the person refuses treatment and would become highly distressed by the knowledge that it might be forced upon them. Indeed, I am aware of another (unreported) case where the proposed patient's phobia of hospital treatment caused her injury when escaping from a moving vehicle. The court endorsed the use of sedation for the purposes of conveying her to hospital, having determined that it was in her best interests to have the medical treatment notwithstanding her fears. A declaration in those terms was supported by the Official Solicitor.

Appropriate circumstances

There is nothing within the MCA or the DOLS which prevents the use of sedation for the purposes of giving effect to a court order. Sedation may be authorised as a precursor to the provision of medical treatment to an incapacitated non-consenting patient. There is no reason why it cannot be used to effect a move to alternative accommodation in appropriate circumstances.

To be lawful, there would have to be clear evidence that sedation is or might be clinically indicated, and it would need to be administered by a registered medical practitioner. It is likely to be in the person's best interests for that doctor to be familiar to them. Even where a court declaration authorises the use of sedation, it should only be relied upon at the relevant time if it is considered absolutely necessary (in which case it will be proportionate) as the only way of protecting the person from the envisaged harm '“ i.e. the distress anticipated by the move. As the MCA requires that any restraint should be carried out for the least possible duration, only the minimum dosage necessary to produce the least sedative effect to enable the transfer should be administered.