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
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
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
“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.