The carers in the landmark Bournewood case have hailed a significant government concession in provisions to safeguard people lacking capacity who are detained urgently for medical treatment or care.
The couple, who care for an autistic man, HL, who was detained unlawfully in Bournewood Hospital, Surrey, in 1997, welcomed a proposed duty on providers to consult “anyone engaged in caring for the relevant person” before an emergency detention.
Duty to consult
They have long pressed for a duty to consult on providers in cases of “urgent authorisations” to detain people for up to seven days.
The provision, which would apply “as far as is practical and possible”, is designed to ensure that carers or practitioners who know the relevant person can inform the decision given their knowledge of the likely effect of detention.
Providers, such as hospitals or care homes, would have to record the steps they took to involve carers, their views and how they took these into account in making a final decision.
‘Having a bad day’
HL’s carers said it would help prevent people, particularly those with autism, from being detained “simply for having a bad day” when out in the community. HL himself was detained in Bournewood after he became upset when travelling to a day centre.
His carers said: “This will make it more likely that people are left where they are best looked after. A change of location for some people may have a detrimental effect on their mental health.”
The provision was included in a draft code of practice under the Mental Capacity Act 2005 to prevent the arbitrary detention of people who lack capacity for treatment or care.
Apart from in emergencies, care homes should apply to the council in which the relevant person lives and hospitals to the primary care trust (or local health boards in Wales) that commission them for a “standard authorisation” to detain the person for up to 12 months.
These should only be granted if it is in their best interests, proportionate and no less restrictive alternative is available.
The draft code has been laid before parliament and is due to come into force, subject to approval, in April 2009.
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