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The carers of an autistic man wrongly detained in a psychiatric hospital have written to outgoing health minister Rosie Winterton over the government’s failure to amend provisions in the Mental Health Bill to protect people who lack mental capacity.

The couple wrote to Winterton last month saying that safeguards introduced in the Bill for people who lack the capacity to consent to their admittance to care homes or psychiatric hospitals were inadequate.

They said the issue has been “largely ignored” in the debates around and coverage of the bill, which returns to the House of Lords today.

In 2004, the European Court of Human Rights  ruled that the five-month detention of an autistic man, known as HL, in Bournewood Hospital  in Surrey breached his human rights, and called for safeguards on such cases, which the government has tried to address in the Mental Health Bill.

However, since the bill’s publication last November, HL’s carers have argued that provisions for psychiatric hospitals or care homes to admit people who lack capacity under an emergency for up to seven days without any authorisation could have a detrimental impact on autistic people.

One of the carers told Community Care said people would be detained “simply for having a bad day” and their condition could then worsen in reaction to being placed in an alien environment, meaning carers should have the right to challenge emergency detentions at the point of admission.

However, a DH spokesperson said urgent admission should only be carried out in the person’s best interests and an independent assessment to decide whether detention is necessary and authorisation from primary care trusts or councils must be provided within seven days. After that, the service user and a representative can challenge the decision at the Court of Protection.

Winterton was made a minister of state at the Department for Transport in last week’s government reshuffle.

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