Grounds for grant of writ of habeas corpus - unlawful detention
Government publishes proposals to close the Bournewood gap.
People who lack capacity will benefit from new safeguards under detailed proposals published today by health minister Rosie Winterton. The proposals are aimed at closing the 'Bournewood Gap', which arises when people who lack capacity to consent and need to receive care or treatment in circumstances that amount to a deprivation of liberty - such as some people with severe dementia or autism - these people have previously been "detained" under the common law, rather than under the Mental Health Act, and so do not have sufficient legal safeguards or protection.
The proposals are in response to the 2004 European Court of Human Rights judgment involving an autistic man who was kept at Bournewood Hospital by doctors against the wishes of his carers. The court found that he had been deprived of his liberty unlawfully, and the Department of Health committed to introducing new legislation to close the 'Bournewood gap'. Last year the government publically consulted on possible solutions to the problem, and today the Department of Health published the responses to that consultation.
Key features of the new proposals include:
- all involved will have to act in the best interests of the person in care and in the least restrictive manner;
- the criteria under which someone can be detained will be strengthened;
- an individual's rights will have to be respected and it will be easier to challenge the decision once someone has been detained;
- every person will have someone 'independent' to represent their interests;
- and the proposals will cover both care homes and those being treated in hospital.
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