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Transfer to hospital under the Mental Capacity Act 2005

  • Clare Stephenson (a1), Robert Baskind (a2) and Christopher Harris (a3)
Summary

This paper presents the case of an elderly gentleman who sustained a fractured neck of femur following a fall at home but refused to go to hospital. His general practitioner determined that he lacked capacity but ambulance and police crews refused to escort him due to concerns regarding deprivation of liberty.

The legal grounds for treating people who lack capacity in emergencies are discussed and the development of the common law into the Mental Capacity Act 2005 is demonstrated. the Mental Health Act 1983 is inappropriate to treat primarily physical conditions, whereas deprivation of liberty cannot be authorised by the Mental Capacity Act 2005 without a means of challenging the lawfulness of the detention. In response, the government has produced Deprivation of Liberty Safeguards, which came into force in April 2009.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Brazier, M, Cave, E. Medicine, Patients and the Law. Penguin, 2007.
2 F v. West Berkshire Health Authority [1989] 2 All ER 545 at 551.
3 Bolam v. Friern Hospital Management Committee [1957] 1WLR 582.
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5 Re D (Medical Treatment: Mentally Disabled Patient) [1998] 2 F.L.R. 22.
6 Re A (Male Sterilisation) [2000] 1 F.L.R 549, 555, CA.
7 Re Y (Mental Incapacity: Bone Marrow Transplant) [1996] 2 F.L.R, 787.
8 Williams, G. The declaratory judgement: old and new law in ‘medical’ cases. Med Law Int 2007; 8: 277304.
9 Jones, R. Mental Health Act Manual (10th edn). Sweet and Maxwell, 2006.
10 Dimond, B. Mental health law and practice, common law powers and the care of the mentally ill. Psychiatr Care 1998; 5: 76–9.
11 Fennell, P. Doctor knows best? Therapeutic detention under common law, the Mental Health Act and the European Convention. Med Law Rev 1998; 6: 322–53.
12 Schofield, C, Holden, N. Detention on a general ward: understanding and applying the new law. Br J Hosp Med 2007; 68: 152–4.
13 Department for Constitutional Affairs. Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2007.
14 Jones, R. Mental Capacity Act Manual (2nd edn). Sweet and Maxwell, 2007.
15 Department of Health, Ministry of Justice. Mental Capacity Act 2005: Deprivation of Liberty Safeguards. Draft Addendum to the MCA 2005 Code of Practice (section 1.13). TSO (The Stationery Office), 2008 (http://www.justice.gov.uk/docs/cp2307-draft-add.pdf).
16 Department of Health. Advice on the Decision of the European Court of Human Rights in the case of HL v UK (The ‘Bournewood’ Case). Department of Health, 2004.
17 Ministry of Justice. Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2008.
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BJPsych Bulletin
  • ISSN: 0955-6036
  • EISSN: 1472-1473
  • URL: /core/journals/bjpsych-bulletin
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Transfer to hospital under the Mental Capacity Act 2005

  • Clare Stephenson (a1), Robert Baskind (a2) and Christopher Harris (a3)
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