Will new Mental Capacity Bill stop further breaches of human rights?

When the European Court of Human Rights ruled last week that the
detention of an autistic man in a psychiatric hospital had breached
his human rights there was widespread celebration

Supporters of Mr L and his carers rejoiced not only in the
family’s personal victory – the culmination of a seven-year legal
battle – but also because of the expected implications the
judgement would have for others like him.

But a shadow has been cast over the case’s success in the form of
the Mental Capacity Bill. Campaigners who have followed Mr L’s
story – better known as the Bournewood case after the hospital
where he was detained – believe the bill does not include
safeguards to prevent another case like his happening.

Mencap chief executive Jo Williams believes the ruling must prompt
the government to ensure the bill has sufficient safeguards.

Speaking to Community Care the day after the judgement, Cathy
Ashton is cautious about the ruling’s implications for the bill,
saying only that it will be “looked at carefully”.

Ashton took over responsibility for the bill from Lord Filkin in
last month’s ministerial reshuffle, and will steer the bill through
its second reading in the House of Commons starting this

She is fortunate to have inherited a piece of draft legislation
which, unlike the controversial Mental Health Bill, has generated
more support than opposition.

Its aim is to give people who have long-term lack of capacity, or
who lose capacity, the right to make decisions about important
aspects of their lives, including those about medical treatment and
living arrangements.

Although the bill’s measures have been broadly welcomed, some have
attracted criticism. For example, the bill includes provision for
advance statements, which allow individuals to explicitly refuse
particular treatments.

Some critics have suggested the bill should have allowed people to
state what they want rather than what they do not want. But Ashton
says there are good reasons for framing the legislation this way,
including the fact nobody knows what developments there may be in
medical science. By insisting on a particular treatment, she says,
an individual might deny themselves more advanced help.

Charities group the Making Decisions Alliance believes the bill has
some key weaknesses which will affect individuals such as Mr

People such as Mr L, who are detained under common law, were
originally covered by the draft Mental Health Bill and would have
had the same entitlements as those sectioned under the Mental
Health Act 1983, including the right to a tribunal.

But when Bournewood-type cases were moved to fall within the scope
of the Mental Capacity Bill, this right was lost and replaced by a
court of protection to which applications can be made to dispute
health and welfare issues, including detention.

Although this offers greater protection than now exists, Mind’s
head of policy, Rowena Daw, says the court of protection is a
“remote mechanism” compared with the tribunal process.

To begin with, says Daw, there are only two such courts in England
– in Preston and London – whereas tribunals sit within the
hospital, making them more accessible. It is also unclear whether
an individual’s nominated person can apply to the court.

Daw says the safeguards for people such as Mr L within the draft
Mental Health Bill would have delivered a “Rolls-Royce service for
the Bournewood patient” by allowing them not only the right to
tribunals but also statutory care plans and access to an

But she believes that, when such cases were moved to the remit of
the Mental Capacity Bill, the government thought it would be too
expensive to allow all those covered by it to have access to
tribunals and advocates.

Arguably, in trying to protect a wider range of people under the
Mental Capacity Bill, the government may have compromised measures
to protect specific groups.

Equally worrying as the loss of a right to a tribunal hearing is
the decision to replace the advocate role with that of an
independent consultee, adds Daw.

Ashton says the function of a consultee – “not the classic form of
advocate” – is to provide a voice for people who have no friends or
family, the so-called “unbefriended”.

But Daw compares the consultee role more to that of a mediator,
adding that they will only become involved in a limited number of

Crucially, the consultee’s function is to look at the “best
interests” of the individual, whereas an advocate is interested
only in the wishes of the individual and, by definition, is “on
their side”.

Ashton argues that, although advocates have a place, perhaps within
secondary legislation or guidance, it would be too difficult to set
out within primary legislation the groups of people who could
fulfil the role.

But, with the absence of tribunals (which could mean single doctors
are allowed unchecked to make decisions about an individual’s
detention and treatment) and the lack of care plan (which could
have prevented people from “just being detained and then left” as
has been the case), it looks as though the protections for people
like Mr L are now much weaker.

Daw believes the government needs to consider the disparities
between the two bills, and “even up” their provisions for different
groups of people.

Ashton is more optimistic. “It is now a great bill. Those who are
worrying about it are worrying needlessly,” she says

But will groups such as the Making Decisions Alliance be

The Bournewood Case

 The European Court of Human Rights ruled that the detention of
Mr L breached his human rights.

Mr L, an autistic man in his fifties who is unable to speak, was
removed from a day centre after staff became concerned about his
behaviour and was detained at Bournewood psychiatric hospital in
Surrey in 1997.

Unable to voice an objection, Mr L was deemed mentally incapable of
consenting to treatment – “incapacitated compliant” – and detained
under common law, which does not allow a right of appeal, unlike
sectioning under the Mental Health Act 1983.

Mr L’s carers, with whom he had lived for three and a half years,
attempted to have him released but were overruled by a doctor.
Three and a half months passed before they were allowed to visit
him. “I did not recognise him,” recalls one of his carers. “He was
dressed in institutional clothes, his hair had not been cut, and he
had lost a dramatic amount of weight.”

A legal battle followed, which ended with the High Court
recommending that Mr L be released. More than five months after he
had been removed from his day centre, Mr L returned home to his

Judges ruled that Mr L had been deprived of his liberty contrary to
article 5 of the European Convention on Human Rights. The court
also found striking “the lack of any fixed procedural rules by
which the admission and detention of compliant incapacitated
patients was conducted”. It also noted a lack of formalised
admission procedures indicating who could propose admission, for
what reasons, and on the basis of what kind of medical assessments
and other considerations.

The court concluded that the lack of procedural regulation and
limits allowed the hospital’s health care staff to assume full
control of the liberty and treatment of a vulnerable incapacitated
individual solely on the basis of their own clinical assessments
and when they considered fit. In effect, the system did not have
adequate safeguards.

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