How we get there: Conveyance plans in the Court of Protection

By Ian Brownhill, 13 September 2023

The focus of many Court of Protection cases is where someone will live, what care and support they will receive, or what medical treatment they should be provided. Once that substantive decision has been made, the Court’s attention will often turn to what is described as “conveyance planning”.

A “conveyance plan” is, in the simplest sense, a plan which provides how a person will get from one place to another. However, conveyance is often one of the most complex areas legally and logistically in a case. 

Sometimes “conveyance plans” are an integral part of a “transition plan”. The two terms are often used interchangeably but that misunderstands the difference between the two things. A “transition plan” is not simply about how somebody gets somewhere (that is conveyance). Rather, a “transition plan” should be focused on how P’s care, support or treatment will be delivered in a different setting. The idea behind transition planning is that P is not overly impacted by a sudden change of surroundings or care/treating team. 

There are some examples of cases involving conveyance issues which can be found on the Open Justice Court of Protection Blog:

•  A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs
• Approving a conveyancing plan to move P to residential care
• Mental capacity assessment and transition plan for a man with schizophrenia and ulcerated legs
• After more than 4 months in hospital (for “assessment”), there’s a new placement and a transition plan for Mr M

The legal challenges in respect of conveyance planning

Sometimes a conveyance plan is simply presented as a logistical nicety. That fundamentally ignores the legal complexity which is involved and often indicates a misunderstanding of core aspects of the Mental Capacity Act 2005 (and other statutory frameworks).

There are three legal issues that frequently arise in cases involving conveyance planning:

• Powers of entry. Lawful entry into a person’s home is strictly limited by statute, even in circumstances where a person lacks the mental capacity to make certain decisions for themselves. There is no power of entry contained within the Care Act 2014, and this was a conscious decision on the part of Parliament. There is no explicit power of entry contained within the Mental Capacity Act 2005. However, a court may authorise entry using the provisions contained with sections 15 and 16 of the Act. In some cases, public bodies have argued that entry should be secured using section 135 of the Mental Health Act 1983, put simply, that approach is unlikely to be necessary in the context of Court of Protection cases. Nor should public bodies expect the police to use powers under section 17(1)(e) of the Police and Criminal Evidence Act 1984 to secure entry to a private property save in emergency circumstances.

• Who is responsible for conveyance? One of the most surprising debates that has become common in complex conveyance cases is who is responsible for arranging the conveyance. Likewise, there is sometimes a presumption that the police will assist in respect of conveyance when no such obligation exists in law. It is impossible to distil a universal rule as to who is responsible for organising the conveyance, but the basic principle is that it will fall on the party seeking the order. 

• Restraint. In too many cases, conveyance has taken place without any authorisation of the deprivation of liberty which arises from the conveyance arrangements. Active thought needs to be given to whether the proposed restraint will go beyond the parameters set out in sections 5 and 6 Mental Capacity Act 2005 and amount to a deprivation of liberty?

What a good conveyance plan looks like

In my experience, good conveyance plans consider the following issues:

• P: Who is P, what is their prior experience of medical treatment, what are their future needs likely to be, how can we prevent their needs intensifying? What does P want?
• Property: Where does P live? How do we extract them from that property? What is our lawful ability to enter? How do we physically enter?
• People: Who do we need to be part of the conveyance? Is this a case where we need to use sedation (or even general anesthesia) in someone’s living room, or is it a case where P will be driven to hospital in a family member’s car? Do we need other parties (perhaps a fifth P) to be involved?
• Passing it on: Who do we need to share P’s experience with for the future? What can we learn from this case that we can pass on so that other professionals might learn from it?

Failures in conveyance planning have consequences

Conveyance planning is not a luxury or a nicety. It is a means of properly protecting P’s rights and sometimes protecting them from harm. The failure to properly plan someone being conveyed to hospital can imperil their physical health. Shortcomings in planning how P will be extracted from an address can cause them to be subject to excessive physical restraint or to be injured during their extraction. Ultimately, conveyance plans that don’t properly consider P’s experience, may have longstanding implications for their care and treatment: they may become fearful of hospital or changes in care settings.

A considered conveyance plan is positive for all involved. In the most basic sense, it avoids the risk of something going wrong during the transfer of location. But it also can give the change of location or care/treatment arrangements the best chance of success.  The most human way of explaining this is our own experience of travel: we are always much happier when we reach our destination if we have had a positive journey without delays, lost luggage and plenty of opportunities to use the loo, to eat and drink.  

Ian Brownhill is a barrister at 39 Essex Chambers and HM Assistant Coroner for Kent. Ian tweets @CounselTweets and is a member of the Advisory Team for the Open Justice Court of Protection Project. 

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