There is growing pressure on the government to include in the
Mental Capacity Bill safeguards to prevent the unlawful detention
of people who lack capacity to object, following criticism by MPs
In a report on the bill published this week, the joint
parliamentary committee on human rights says its provisions do not
meet requirements under the European Convention of Human Rights
Failure to include in the bill safeguards for people who are
detained because they cannot object – “compliant incapacitated”
-Êsuch as access to tribunals and advocates means it is
“established beyond doubt” that it is incompatible with article 5
of the ECHR, says the report.
The report follows the victory in the European Court of Human
Rights in October of an autistic man, known as HL, who was
unlawfully detained at Bournewood Hospital in Surrey for five
months because he was not able to discharge himself.
Judges ruled that HL had been deprived of his liberty, contrary to
article 5 of the ECHR.
The report says:”It is obviously undesirable for the present bill
to proceed to enactment on its original assumption that there was
no Bournewood gap to be filled.”
A spokesperson for the Department for Constitutional Affairs
promised to respond to the committee’s comments, but said the
government remained satisfied that the bill, republished last week
for the 2004-5 parliamentary session, was compliant with the ECHR.