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The government is under growing pressure by MPs to introduce safeguards into the Mental Capacity Bill to to prevent the unlawful detention of people who lack the capacity to resist, writes Sally Gillen.

The bill does not meet requirements under European human rights law, the Joint Committee on Human Rights concluded a report published this week.

Failure to include safeguards for "compliant incapacitated" people such as access to tribunals and advocates meant it was “established beyond doubt” that the bill was incompatible with the European Court of Human Rights, said the report.   

Its findings follow victory in the European court in October for an autistic man, HL, who was detained unlawfully at Bournewood Hospital, in Surrey, for five months because he was not able discharge himself.

Judges ruled that HL was deprived of his liberty, which contravened article five of the human rights convention.

Health minister Rosie Winterton told parliament at the time of the ruling that all aspects of the Bournewood judgment would be considered and the government would “deliver the appropriate safeguards as soon as possible”.

But the committee said it was concerned at the “apparent postponement of a remedial measure following the judgment in HL v UK” and said it had written to a parliamentary under secretary at the Department for Constitutional affairs for an update.

“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", said the report.