Urgent medical treatment for s3 patient, potentially involving restraint

Hello everyone. I need advice. We have a section 3 patient who is in desperate need of a procedure to heal a long vascular ulcer. We held best interest meeting as she does not have capacity. If she does not have this procedure she could lose her leg or go into septic shock and possibly die. All the team agree the she needs the procedure, but because of her thought disorder she would get extremely distressed and as a contingency we have to consider light STMVA restraint. Only as a contingency for her safety. Our problem is she needs to go in a general hospital for a day case admission. The general hospital are saying they need to go to CoP as it is a DoLS matter for her transfer. Any thoughts?

See my reply to your last post. The restraint in itself isn’t necessarily an indicator of deprivation of liberty, but it is a relevant factor, and she is highly likely to be deprived of liberty throughout the process of transfer and admission to general hospital. And as this will not be for mental health treatment, then s3 will arguably not suffice, although s17 leave might. All very much of a minefield which has never been clarified. However, an application to court can, as stated previously, be made urgently, and a judge can potentially authorise a deprivation of liberty in the general hospital, if felt necessary.

Thank you Steve. My priority is my patient. I do feel time is of the essence, I did feel the medical team were ‘dragging their feet’. I was under the assumption that because she was our patient ( I don’t mean this in any derogatory way) we were responsible for her transfer for any outside appointments/ trips.

Hi Paul, if you go through your hospital internal legal team if you have not already, they should give you the advice you need (and/or engage external solicitors if required) to advise and liaise with the acute trust and determine the plan and this can be done very quickly (we do this all the time for acute and mental health trusts/hospitals and can frequently act for both where there is no conflict of interest) - I can’t give advice on the forum - but a number of factors may impact which organisation applies to court, or indeed whether an application is definitely required etc so the full facts will need to be worked through to determine that, but a professionals meeting between both organisations with legal support will hopefully resolve the issue expeditiously for you and your patient in that regard.

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It may help to get the general hospital to think about the treatment and the deprivation of liberty aspects separately.

As Steve said, you could give the patient s17(3) leave on condition that they reside in the general hospital. That would give the general hospital the power to detain them.

If so, no question of needing a separate DOLS authorisation would arise unless the nature of the proposed restraint is at such a level that it would amount to depriving the patient of their “residual liberty” (a slippery concept, but from what you say doesn’t seem particularly likely in this case).

The question then is whether the team at the general hospital are prepared to treat under the MCA on the normal basis of a “best interests” decision (which could include the use of proportionate restraint), or whether they feel they must get authorisation from the court.

Again from what you say, I can’t immediately see why a court order would be necessary, unless there’s something contentious or experimental about the proposed treatment plan. That’s ultimately a decision for the treating clinicians. Their lawyers should be familiar with it, but there’s guidance from the Court on when an application should be made, at Practice Guidance (Court of Protection: Serious Medical Treatment) [2020] EWCOP 2 (see especially paras 8 to 13)

This is similar to another post.
Section 17 will allow the willing capacitated or incapacitated patient to leave the Mental Health Hospital, but not to stay in another place if the patient refuses. This applies also during transport.
A DOLS concomitant to a Section 17 can be done. The Section 17 is to leave the Mental Health Hospital (if the patient complies) and the DOLS in the general hospital to stop her liberty to get out of the general hospital if deemed incapacitated.
Though, I cannot find a direct or simple legal provision for the transfer of an unwilling incapacitated mental health patient from a Mental Health Hospital to a General Hospital if it is not through a CoP.

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Antonino - sorry to be contradictory, but I think you’re wrong about s17 leave.

Subsection 17(3) specifically allows leave to be granted on condition that the patient remains in another hospital - and gives the staff of the other hospital the power to detain them there:

" (3)Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital."

Although it doesn’t specifically provide a power to transport the patient against their will, I imagine that would fall within the powers inherent in the authority to detain if it is necessary to get the person treatment they need. If not, and the patient lacks the relevant capacity, the transfer could in principle be effected on a best interests basis under s5 MCA (in the same way that ambulance services sometimes end up using the MCA to take unwilling incapacitated patients to A&E). Can’t see why an order of the CoP would be needed, given that the person is already detained under the MHA.


I’m in agreement. Technically it’s also just a day case, so she wouldn’t be there for a full day let alone overnight. My fear is that could become a minefield for any idea of transporting anyone who hasn’t capacity to anywhere else.