03/07/06 - New safeguards for the most vulnerable people
People who lack capacity will benefit from new safeguards
under detailed proposals published today by health minister Rosie Winterton.
The proposals are aimed at closing the 'Bournewood Gap', which arises
when people who lack capacity to consent and need to receive care or
treatment in circumstances that amount to a deprivation of liberty -
such as some people with severe dementia or autism - these people have
previously been “detained” under the common law, rather than under the
Mental Health Act, and so do not have sufficient legal safeguards or
protection.
The proposals are in response to the 2004 European Court of Human Rights
judgment involving an autistic man who was kept at Bournewood Hospital
by doctors against the wishes of his carers. The court found that he
had been deprived of his liberty unlawfully, and the Department of Health
committed to introducing new legislation to close the 'Bournewood gap'.
Last year the government publicly consulted on possible solutions to
the problem, and today the Department of Health published the responses
to that consultation.
Key features of the new proposals include:
all involved will have to act in the best interests of the person in
care and in the least restrictive manner;
the criteria under which someone can be detained will be strengthened;
an individual's rights will have to be respected and it will be easier
to challenge the decision once someone has been detained; every person
will have someone ‘independent’ to represent their interests; and the
proposals will cover both care homes and those being treated in hospital.
Health minister Rosie Winterton said:
"The Bournewood case highlighted an extreme situation that is unacceptable
and breaks human rights legislation. I would like to thank all those
organisations and individuals who took part in our consultation on this
issue - you have played a key role in helping shape our approach.
"People should be cared for in the least restrictive regime practicable.
These proposals will strengthen the rights of patients and those in
care, as well as ensuring compliance with the European Convention on
Human Rights. Society is judged on how it treats its most vulnerable,
and it is imperative that we have robust legal safeguards in place to
ensure that those people who lack capacity are properly protected."
The provisions will be introduced into the Mental Capacity Act 2005
through a Bill that will also amend the Mental Health Act 1983.
Source : DOH
