New proposals aimed at closing the ‘Bournewood gap’ have been announced by health minister Rosie Winterton today in a bid to benefit people who lack capacity.
The Bournewood gap arises when people who lack capacity to consent and need to receive treatment in circumstances that amount to a deprivation of liberty, such as people with dementia or autism.
In the past, people who lack capacity have been detained under common law rather than the Mental Health Act and as a result were not sufficiently protected.
The Bournewood case involved an autistic man who was kept in Bournewood hospital against the wishes of his carers. The European Court of Human Rights found that he had been deprived of his liberty unlawfully.
As a result the Department of Health pledged to introduce new legislation to close the Bournewood gap and last year consulted on possible solutions.
Under the new proposals
Winterton said: “People should be cared for in the least restrictive regime practicable.
“These proposals will strengthen the rights of patients and those in care, as well as ensuring compliance with the European Convention on Human Rights.
“Society is judged by how it treats its most vulnerable, and it is imperative that we have robust legal safeguards in place to ensure that those people who lack capacity are properly protected,” she concluded.
The provisions will be introduced in the Mental Capacity Act 2005 through a Bill which will also amend the Mental Health Act 1983.