• There may be circumstances where a service user needs to leave a health or social care setting and is reluctant to do so. For example, where they are medically fit for discharge from a hospital or where a placement has indicated that they can no longer provide for that person.

    The legal landscape for arranging the person’s leaving of the health or social care setting is complex. Different legal regimes, with different considerations, apply depending upon the circumstances.

    In this session, Anna Tkaczynska from Serjeants’ Inn Chambers considered:

    • What are the service user’s rights to occupy the health and social care setting – and what does this mean for ending those arrangements?
      - Public authority hospital inpatient; or
      - Other care setting – both as a private payer or commissioned by a public authority.
    • Assessing the service user’s capacity to make decisions about discharge / residence – and how does this impact what the relevant legal regime is?
    • An overview of the two potential legal regimes and key considerations for each:
      - Mental Capacity Act 2005: best interest decisions, restraint and deprivation of liberty;
      - Possession proceedings: effective notice, vulnerabilities and potential defences;
    • Lessons to be learnt from the case law and practical guidance on the evidence required.

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