Patients who lack capacity could be detained for a year under new plans

People who are deprived of their liberty in psychiatric units because they do no have the capacity to resist could be detained for up to a year, under proposals leaked to Community Care.

Campaigners have condemned the plans, saying they fail to adequately safeguard people who lack capacity under detention or to give them equal rights of appeal to those sectioned under the Mental Health Act 1983.

The latter can be detained for 28 days before having their cases automatically reviewed by the Mental Health Review Tribunal.

People who lack capacity would have no automatic appeal procedure. They or their representatives would have the right to appeal to the Court of Protection, but there are no details on whether they would receive legal aid or whether their cases would be fast-tracked.

The proposals, which would be introduced under the Mental Capacity Act 2005, were emailed by the Department of Health to a handful of organisations at the end of last month and are designed to address so-called Bournewood Gap cases.

In 2004 the European Court of Human Rights ruled that the five-month detention of HL, an autistic man who cannot speak, at Bournewood psychiatric hospital in Surrey breached his human rights.

His carers, Graham and Wendy Enderby, who were unaware of the DH’s plans, criticised them saying they would leave too much power in the hands of social services and health professionals.
Graham Enderby said: “If the people who live with HL cannot challenge it, what good is that to him?”

A source within the Mental Health Alliance, a coalition of individuals and organisations that was formed in 1999 to oppose the then draft Mental Health Bill, said: “A year is far too long for someone to be detained. We are just looking for parity with mental health law.

“The main problem seems to be is that there isn’t a strong right to challenge the detention. They can go to the court of protection but it is not clear whether there will be access to legal aid and how immediate will that be.”

The Alliance and campaigners on the capacity issue have demanded an urgent meeting with the Department of Health to discuss its proposals.