Devising and completing conveyance plans for submission to the Court of Protection
Scope of this chapter
This chapter is about conveyance plans for the Court of Protection.
Key terms and abbreviations: Throughout this guidance, the Mental Capacity Act 2005, as amended by the Mental Capacity (Amendment) Act 2019, is referred to as “the MCA”. The individual who is the subject of the conveyance plan is referred to throughout as “P”; this term is commonly used in Court of Protection parlance to denote the person lacking capacity or the “protected person”. Deprivation of Liberty is abbreviated to “DoL”, and the Deprivation of Liberty Safeguards to “DoLS”.
Amendment
In August 2024, this new local chapter was added to the Deprivation of Liberty section.
Where someone is assessed as lacking mental capacity about the level and type of care they need, and where they should live in order to receive that care, this may need to be decided in their best interests by an Adult Care or NHS professional, or a family member where a Lasting Power of Attorney or deputyship for health and welfare is held. It may be necessary for the person lacking capacity (hereafter “P”) to move from one location, which could be their home, supported living, hospital or a care home placement, to another place if no less restrictive way of meeting their needs and mitigating risks of harm can be identified.
The MCA at s.5 details acts that may be carried out in best interests, and with immunity from prosecution, where an individual lacks capacity about the relevant decision. Importantly, however, s.6 of the MCA makes clear the limits of the use of force or restraint in relation to carrying out those acts.
Sometimes, P, about the decision, may have expressed a positive view of the proposed move. Alternatively, they may have given no response, either verbally or behaviourally. In these circumstances, the move could reasonably proceed in their best interests.
However, where P has verbally and/or behaviourally shown their clear objection to the proposed move, it is vital to consider whether the actions/interventions that may be necessary to remove them from their current location, and transport and admit them to a placement, may exceed what is permissible under the MCA.
In particular, would any restrictive interventions used amount to a deprivation of P’s liberty (hereafter “DoL”) which cannot be authorised by s5 MCA? UK and EU caselaw over several years has confirmed the circumstances and timescales within which a DoL may occur. Without additional Court of Protection authorisation any resulting DoL is likely to be an unlawful interference with P’s Article 5 (EHCR) right to “liberty of the person”.
For these reasons, in circumstances such as those described above, Adult Care staff are advised to seek legal advice, to confirm whether the local authority should apply to the Court of Protection to seek authorisation for the proposed transfer. If this is the case, completion of a conveyance plan is likely to be required for submission to the Court along with application papers including a witness statement, setting out the local authority’s rationale for the move being proposed for P.
In some cases P may already, in advance of the move, be subject to a lawful DoL in their present location (e.g. authorised via a Standard DoLS Authorisation or authorisation of the Court of Protection for a DoL in a community setting). Additionally, on admission to the new placement, any DoL there would similarly be made lawful. HOWEVER, it is the lack of legal authorisation for any DoL between theses two places that is of concern, in particular when someone has made clear that they strongly object to what is being proposed and it is likely that restrictive means, especially restraint, may be needed to transport and admit them to the placement.
Therefore, authorisation of the Court of Protection for this otherwise unlawful DoL and for any restraint that may be needed during the transfer is essential. Once you have alerted Legal Services Lincolnshire to the potential requirement for an application to be made to the Court of Protection, you will be given the legal advice and support necessary to complete the conveyance plan and additional documents required.
Before setting out the finer details of the conveyance plan, decide what you want to be achieved; what the aim of the conveyance plan is. In simple terms, this will usually be to achieve the transfer of P from “location A” to “location B” in the least restrictive way possible that will ensure their safety and wellbeing and also that of others around them.
For the Court of Protection to be assured that arrangements proposed for P will be in their best interests, the conveyance plan will need to be detailed, so that it is absolutely clear to the reader exactly how P will be, against their wishes, moved from one setting to another, whilst maintaining their safety and wellbeing.
It is crucial to evidence in the conveyance plan that you have meticulously prepared for not only “things not quite going to plan” but also the (reasonably anticipated) worst case scenario. It has been commented by the judiciary and legal profession that a conveyance plan should not be founded on optimism (“fingers crossed and hope for the best”) or simply be a statement of broad aims and outcomes. It must be founded on realism and honesty, and should be a step by step account (more akin to following a recipe) of how P will be moved from A to B, including details of the “what”, “when”, “why”, “where” and “who”.
Communication with key parties involved in the conveyance is imperative. Whilst formulating and finalising the plan it is likely to be necessary to liaise with a variety of MDT professionals and other parties, e.g., GP, CPN, IMCA, family, police force, transport provider, current care givers and future carers. If there is a reasonable belief that ambulance personnel or police may need to use restraint- they will need full details of the plan, and confirmation that any restraint that they may be called upon to use, will be lawful.
Document the work you or others have done to try to reduce any distress, anxiety or restrictive interventions and prepare P for the conveyance. This is central to the key aim of undertaking the conveyance in the least restrictive way possible. But be open and honest; if you e.g. considered offering P a visit to the new placement, a meeting with placement staff or providing written or other visual information, but concluded (on the basis of your knowledge of P and their behaviours) that it was not in their best interests, explain this. If not, it might be assumed that such preparatory work was overlooked.
Such preparatory measures might be reassuring and helpful to some, but others may become so distressed and agitated in response to them that additional, restrictive interventions may be necessary to alleviate the distress caused. In some cases, an additional, dedicated and detailed care plan may be needed to manage the process of transition from one setting to another.
Use your knowledge of P’s personality and observed behaviours to inform which measures might prove helpful and which are unlikely to. Think “outside the box”; e.g., you may know that P loves dogs, and it may be helpful if during the journey, P is reminded that the care home has a dog that they will be able to meet and spend time with soon. Does P have a treasured possession, such as a picture, blanket or other object that would be a source of comfort during the journey? At all times, keep in mind P’s physical and mental condition, any frailties, plus any existing medical conditions and disabilities.
Think about who (apart from transport personnel) could and would help e.g., IMCA, family, a trusted member of care staff etc. Do not ask them to overstep their role or professional boundaries, however.
Decide on the optimum time of day for the transfer to take place. If P often becomes confused and anxious in late afternoons, it would be unwise to schedule the transfer for then.
Explain how P’s possessions will be kept safe during and after the transfer, and especially if P is being removed from their home in the community, confirm how the property will be secured and safeguarded after P’s departure.
If P has a pet they will be leaving behind, either temporarily or for a longer period, planning to ensure the welfare of it will be necessary well in advance of the move. Explain how the welfare of any such pet will be ensured and who will take responsibility for this. Confirm whether P will be reunited with the pet at a later date, once settled at their new home.
As already stated, the conveyance plan must address not only “the best-case scenario” (the preferred and least restrictive way that it is anticipated the conveyance could proceed), but also arrangements if things do not go to plan, including the “worst case scenario”. You cannot foresee every eventuality, but your knowledge of P and how they react in certain situations should help to inform whether there may, or may not be, a potential requirement for physical restraint or the use of sedative medication during the conveyance.
It is especially important to consider P’s physical frailties, any existing medical conditions and disabilities if administration of sedative medication, and/or some element of physical restraint may become necessary during the conveyance. P could be very strong and physically robust or may be quite frail and weak.
If P is very frail, you may also need to discuss with a Registered Nurse whether any pressure relief equipment or measures may be needed to prevent pressure damage during the transfer - especially if the journey is of any length. Information within the conveyance plan should confirm that all such factors have been fully considered and discussed with an appropriate health professional before a decision was made as about their use.
If physical restraint could be necessary, the Court will need confirmation that transport personnel attending are trained in “safe-holding”/restraint and that their organisation has a current policy around use of it. It is usual to “exhibit” or append the latter to the witness statement and conveyance plan submitted to Court by the local authority.
If police support may be needed to safely undertake the conveyance, it is advisable to contact the relevant police force’s control room at an early point to give advance notification (on a date TBC) of the conveyance and to advise that their support may be necessary. An “incident number”, which can be quoted in the conveyance plan, is usually issued at this point. Once the Court has authorised the conveyance plan and a date/time are confirmed, the full conveyance plan plus Court order are usually shared with the police force. Should police support be needed during the conveyance, it can be obtained by contacting the appropriate force and quoting the relevant incident number, which should expedite their response. If P is moving from Lincolnshire to an “out of county” placement, remember to consider whether you may also need assistance from police in the host county.
Begin with the “basics” such as: P’s name and current location, where they will be conveyed to and (if possible) the proposed timescale for this. State how long the journey is and who will provide the transport. Explain who will be involved with the conveyance on the day. Confirm the objective of the conveyance plan, as discussed in section 2 of this guidance. Refer to the conveyance plan being devised and provided in conjunction with a Court of Protection statement of (provide your name and date the statement was signed).
Move on to detailing any preparatory work undertaken (explain where any such work was considered but not undertaken). Make clear at what point P will be informed of the planned transfer. This may be a week prior to it, the day before, on the day. Should it be believed not to be in P’s best interests to be informed of the transfer in advance, make clear what the reasons for this are.
Confirm arrangements for P’s usual care and support on the transfer day before the transport arrives, including administration of prescribed medications. Explain what will happen to their belongings and any valuables and how they will be transported to the destination. Particularly if the journey will be of any length/duration, make clear if P may require a drink, food or use of the toilet. Explain the practicalities of the latter.
Now proceed to document the scenarios or “options” through which you envisage the conveyance taking place. Start with the least restrictive, most straightforward “best case scenario” that you believe to be realistically possible, based on what you know of P’s presentation, condition, personality, observed typical behaviours and what they have already expressed about the proposed move. Remember to account for all stages of the conveyance; P’s departure from their current location, boarding the transport and the journey itself, P getting out of the vehicle and entering the placement. Each of these stages may present challenges and risks.
Progress to more restrictive, numbered options: explaining what will happen if Option 1 doesn’t proceed as planned and lesser restrictive interventions prove unsuccessful. For example, there may be a need for sedative medication to be administered at some stage, for physical restraint to be employed or for police to be summoned to assist with managing the situation and admitting P to the placement. Use a new, separate option for each additional layer of restrictive interventions needed. You may end up with between 2-5 options.
Clarity and detail are essential as parties who will be involved in the conveyance, eg. care staff, ambulance personnel, advocates, police, CPN, etc, will need to know what they will be, or might be expected to do, and how this fits in with other events and others’ roles on the day. Similarly, the Court will need sufficient information in order to authorise what is being proposed for P.
It might feel like you are providing excessive detail but you will not be criticised for providing too much detail in these circumstances. On the contrary, if P’s legal representatives and the Judge do not feel that they have sufficient information to be reassured about the plans, they will repeatedly come back to you to request more details, causing delays. This is especially the case where it is believed that sedation, restraint and/or police support may be necessary.
Confirm how family members or those important to P will be updated about the success (or otherwise) of the conveyance afterwards. They are likely to have been worried about it.
Avoid the mistake of providing detailed and well thought out plans but then stopping abruptly on P’s admission to the placement. If physical restraint has been used, it must be made clear in the conveyance plan what measures will be employed to ascertain whether P has suffered any injury or ill health as a consequence, and if so, how prompt treatment will be obtained for this.
Similarly, if sedative medication has been administered, placement staff may need to be alert to an increased risk of falls until the effects of this have worn off, and P may require increased observation during this period to reduce this risk.
Confirm how help will be obtained by placement staff in a crisis in the period immediately after admission. Ensure that placement staff have appropriate “out of hours/weekend” contact details in the event of a serious/acute mental health problem in the hours or days after admission. This may be via CPN, CMHT, “crisis team”, Adult Care, GP, Psychiatrist.
Where P has longstanding, complex or severe mental health problems and their presentation can be volatile and inconsistent, confirm how their mental health will be monitored in the short to medium term until the placement “stabilises”. If possible, state when any involved CMHT professionals plan to review. If P’s move necessitates transfer to a different GP and/or CMHT, has this changeover been planned to avoid delays in P being seen or followed up?
Also, make clear within what timescales you will visit P to check on their welfare and progress and review the placement.
Finally, it is essential to ensure that any DoL that P will be subject to in the new placement is also lawful. Advise senior placement staff to submit a DoLS Application to Lincolnshire County Council DoLS Supervisory Body (c/o mentalcapacityresource@lincolnshire.gov.uk) without delay, following admission.
Last Updated: August 12, 2024
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