Memorandum submitted by Alan Capps (MH 28)
1. The purpose of the bill is to accommodate Bournewood provisions with respect to deprivation of liberty.
2. The debate has been intense; nevertheless the bill has been driven through without any guaranteed provision of high quality care, and certainly no provision to fund it.
3. The proposed amendment to the Mental Capacity Act 2005 to address the issue is introduced by Section 4A. The title of this Section "Restriction on Deprivation of Liberty" reflects the European Court judgement in the Bournewood case, that the distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance. The choice of the wording of that title indicates that the Government has no intention of providing any further clarity on this subject through the Bill. The failure to define deprivation of liberty leaves an open situation.
4. The aim of the Bournewood proposals was to provide legal safeguards for those vulnerable people who are deprived of their liberty. Whilst the Bill outlines a process to approve the deprivation of liberty of a person lacking capacity who is in hospital or a care home, it does not define a process of how to establish that such deprivation exists. Furthermore it fails to provide any new compulsory power to decide that a person lacking capacity must be accommodated in hospital or care home. The MHA does this, and as stated in the draft Code of Practice, the Decision-makers should consider using it if is not possible to give the person the care or treatment they need without carrying out an action that might deprive them of their liberty.
5. If, as the Government has outlined in the Bournewood Briefing Sheet, the provisions cover those people who cannot be detained under the MHA, their detention and deprivation of liberty will continue to follow existing common law and thereby be in breach of Article 5 of ECHR.
6. After the length of time that has passed since the inception of the Bournewood case, it is very difficult to understand why there is such a lack of clarity in providing any safeguards for the thousands of vulnerable people with dementia and other mental disorder, and why this has to be linked with MHA treatment of psychopaths.
7. The answer probably lies in the fact that the Government has no wish to provide those safeguards, expressed in the words of Baroness Ashton of Upholland: "If one accepts-and I do- the principle of means testing in these cases, it is in order to provide high quality care. The principles behind the Bournewood provisions are precisely that."
8. The Bill in its current form makes no provision for high quality care, and will be the source of significant challenge and further wasted resource.