Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents


On Tuesday I undertook to send you and the Committee a note on my views about whether I thought we had filled the "Bournewood gap" with the Deprivation of Liberty Safeguards (DoLS).

The "Bournewood gap" arose from a case where a patient lacked the capacity to consent to being kept at a hospital for assessment and treatment. The European Court of Human Rights found this was an unlawful deprivation of liberty that breached the requirement in Article 5(1) of the European Convention of Human Rights that a person can only be deprived of their liberty, without their consent, in accordance with a prescribed legal procedure. There had also been a contravention of the requirement in article 5(4) that any person deprived of their liberty should be entitled to take proceedings by which the lawfulness of the detention can be decided speedily by a court.

Consequently, the "Bournewood gap" was closed by the introduction of the DoLS in the Mental Capacity Act 2005 (MCA) by the Mental Health Act 2007. The DoLS ensure there is a legal procedure for authorising deprivations of liberty in hospitals and care homes for adults who lack capacity to consent to admission or treatment. DoLS is the framework of procedural safeguards comprising:

·  section 4A: a person may be deprived of their liberty under the MCA if this is authorised by an order of the Court of Protection or a DoL authorisation under Schedule A1;

·  Schedule A1: the qualifying requirements and process for DoL authorisations to be put in place, and subsequently reviewed; and

·  Schedule 1A: the circumstances where the MCA (whether by an order of the Court of Protection or a DoL autholisation) cannot be used to deprive a person of their liberty.

The DoLS were designed to address the "Bournewood gap", not just in hospitals, but also in care homes. The Court of Protection is also able to make a welfare order under the MCA to authorise a deprivation of liberty of a person in other settings (if they are not ineligible under Schedule 1A), and can determine the lawfulness of any deprivation of liberty under the MCA.

While the gap has been addressed by the legislation, there remain issues of awareness and appropriate use of the DoLS, and I accept that not all care homes and hospitals understand fully when the DoLS should be used. Further work is needed in this area.

An additional issue raised with you was whether there is 'a gap' in relation to possible deprivation of liberty in supported living accommodation. My view is that there is no gap as an application can be made to the Court of Protection to authorise a deprivation of liberty in supported living. We may revisit this in the future, as I said in evidence, as more people with complex needs are cared for in the community. For the moment I am content that local authorities should seek authorisation from the Court of Protection.

Lastly, in cases where a patient has been deprived of their liberty under the Mental Health Act, and medical treatment is required for physical conditions which are not related to the mental disorder, such treatment can be provided under section 5 of the MCA if the patient does not have capacity to consent to the treatment. In a very small number of cases, the treatment required may involve a deprivation of liberty and in such cases the MCA regime is not available because the person is ineligible to be deprived of their liberty under Schedule 1A. However, the High Court has an inherent jurisdiction to authorise a deprivation of liberty for that purpose and therefore there is no gap which requires filling (and in any event, this is not the "gap" that was at issue in the Bournewood case).

You have also asked me to address question 8: The difficulty between providing the appropriate balance between safeguarding and protection has been a consistent theme in the evidence that we have heard. Given the understandable focus on safety within health and social services, how does the Government intend to prevent the empowering ethos of the MCA from continually being overshadowed?

I am very clear that the MCA is very much about the balance of protection and empowerment, and I think all the training and awareness raising and guidance makes this clear. The training invariably starts with the empowering principles—that people are assumed to have capacity; that people can have capacity about some matters and not about others; and importantly that a person must be helped to make a decision before they are found to lack capacity to do so. These are all very important and empowering principles.

As you heard from other witnesses, safeguarding has a longer history and is better established in health and social care. More people understand that their role involves making a safeguarding alert if they are worried about a person, and that there are safeguarding leads who will investigate safeguarding concerns.

We need to ensure that the empowerment message is equally understood. We do this through the guidance we produce; through the messages we give when speaking at conferences, and also through our wider policies on personalisation and choice and control. The empowerment message underpins the response to Winterbourne View; and much of what we are doing to enable people with disabilities to live in the community. It underpins our policies on 'choice and control' in both social care and the NHS. We will be writing safeguarding guidance to accompany the safeguarding clauses in the Care Bill, and we will ensure that this balance is present throughout the guidance.

I hope this information is helpful to you and the Committee.

Norman Lamb MP

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