To convey or not to convey?

The process of conveyance with the Deprivation of Liberty Safeguards (DoLS) is an important issue. ¹ Conveyance can involve restraint, which does not usually amount to a deprivation of liberty and is covered by the Mental Capacity Act 2005, Sections 5 and 6. Paragraphs 2.14 and 2.15 of the Deprivation of Liberty Safeguards Code of Practice ² attempt to deal with this issue, although it is worth examining recent case law for an answer.

In DCC v KH (2009) ³ it was suggested that a standard authorisation would be sufficient to return an individual to the care home or hospital (from a place of residence), where the deprivation of liberty has been authorised, without any additional authority. ⁴ This judgment suggests that permission from the court is not required when returning somebody to where there is a standard authorisation for them to be deprived of their liberty. The DoLS Code of Practice states: ‘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’ (par. 2.14).

Notably, paragraph 2.15 of the Code describes ‘exceptional circumstances’ when conveyance could amount to a deprivation of liberty and an order from the Court of Protection (to provide a residence order) would be necessary. With the majority of complaints regarding the Court of Protection originating from the length of the process and delays, ⁵ effective planning for conveyance is advisable.