MCA and discharge to bespoke placement

Where a patient is being discharged to a bespoke (non-care home) placement with live-in carers and will be deprived of their liberty what is the correct approach?
If the LA have applied to the CoP and this is going to take months to process should the patient remain in hospital or on leave until the CoP decision? If the patient is discharged onto a CTO with no CoP decision in place and the patient objects to the care plan what is the best way to deal with this. (I don’t want to weigh in too heavily and lose him the placement.)

Hi Karen,

I think best practice would have been for the LA to have applied to the CoP well in advance of the bespoke placement being ready in order to dovetail discharge to the placement with the CoP’s order under s.16 MCA to authorise the DoL and care plan but as ever, “we are where we are”.

I have recently advised a LA and CCG on this on behalf of my client and agreed with them and the current RC that the best way forward pending the CoP’s order is to use s.17 MHA leave in order to authorise the DoL of the patient at the placement pending CoP authorisation.

The worst case scenario is discharge on to a CTO before the CoP order as the CTO provides no authority to deprive the patient of their liberty save for recall/revocation back to the hospital.


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Thank you Ian and that is precisely what I thought although the provider is convinced that the application itself provides authority. The patient doesn’t want to go out unescorted anyway but he does want access to all his possessions.

Hi Karen,

An application to the CoP does not authorise a DoL in the interim save for the very specific exception in s.4B MCA which requires there to an an issue regarding the giving of life-sustaining treatment or doing any “vital act” (a vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition) and I don’t think the situation you desbribe would fall under either of those headings so you are correct and they are not IMHO.


Thank you Ian and that leaves me with something of a moral dilemma. This placement has taken years to source and now he is happy there (aside from the access to his tapes) but he is being unlawfully deprived of his liberty. My concern is that if I point out that they have no lawful authority to do this they may decide to recall him to hospital. They have already made veiled threats along those lines.
What would you do in that situation?

Hi Karen,

A colleague had a similar scenario recently. In that case the actual deprivation of liberty was pronounced in that he was on a 3:1 at all times in his bespoke placement and in the community!

The first question is whether your client has capacity to agree (even if they are not necessarily happy with the arrangement) to the care plan and the restrictions placed upon them?

Sounds like it may be fact sensitive and happy to discuss further if you wish to call me at the office tomorrow.


I agree with Ian about using s17 leave to authorise deprivation of liberty for the time being.

How long does the Court of Protection take these days? Would this be a Re X case?

It doesn’t make it right, but if your client were to be unlawfully detained he would be a drop in the ocean. Just looking at DOLS applications that have been made, “The reported number of cases that were not completed as at year end was 129,780” and “The proportion of standard applications completed within the statutory timeframe of 21 days was 23.6% in 2019-20. The average length of time for all completed applications was 142 days.” (NHS Digital, ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2019-20’ (12/11/20)).

Thanks Ian-I will call.
Unfortunately too late for s17 in my case as he has been discharged. I have been saying for the last year that they need to apply to CoP early because of delays and have been assured that it was in hand.
I always find it difficult when insisting on a strictly lawful approach could be to the client’s detriment.

And I hate to be ignorant but I don’t do MCA and seem to have missed Re X. What is the full title,

Hi Karen
It is not that hard to get an interim Re: X type order from the COP and it can be in place before the intended move. It can also allow for transition, although using S.17 leave can mitigate this need.
LA’s should have tools to make the application to the COP pretty quickly. I have just done one and the court heard the matter within 14 days of the application being submitted and with the patient objecting. Does anyone dispute the DOLS (you, your client, an advocate anyone on the MDT?) if they do, then it will be more complicated.

Karen, it may not be too late. Could you persuade them to recall and revoke the CTO, then sec17 leave could be authorised until COP ?

Thank you all for helpful contributions and particularly Ian who has now talked me through it in language simple enough for me to understand!
My client certainly would not want to be recalled but I am now armed with the info to approach the social worker and find out what is happening with their application.