APPENDIX 6: LETTER FROM NORMAN LAMB MP-9
DECEMBER 2013
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
| 
