Editorials

Deprivation of liberty safeguards and the Mental Capacity Act

BMJ 2009; 338 doi: http://dx.doi.org/10.1136/bmj.b1888 (Published 19 May 2009) Cite this as: BMJ 2009;338:b1888
  1. Anthony Zigmond, consultant psychiatrist
  1. 1Leeds Partnerships NHS Foundation Trust, Newsam Centre, Leeds LS14 6WB
  1. anthony.zigmond{at}leedspft.nhs.uk

    The new proposals are complex and will be a challenge to implement

    On 5 October 2004 the European Court of Human Rights ruled that Mr L, a man with autism and learning disability, had been deprived of his liberty contrary to Article 5[1] of the European Convention for the Protection of Human Rights and Fundamental Freedoms because his admission to hospital was not “in accordance with a procedure prescribed by law” and he was unable “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.”[2] He had not had the capacity to consent to his admission to hospital. He did not attempt to leave the hospital but, had he tried, would have been prevented from doing so. He was denied any contact with the paid carers with whom he lived. The Mental Health Act 1983[3] had not been applied because the common law doctrine of necessity had been thought to authorise his admission to hospital, in his best interest, and as Mr L hadn’t tried to leave and been stopped it had been thought that he wasn’t being “detained”.

    The Government responded by amending the Mental Capacity Act 2005[4] using the Mental Health Act 2007.[5] The new provisions, known as the Deprivation of Liberty Safeguards, came into force on 1 April 2009. Their purpose is to “provide legal protection for those most vulnerable people, who are, or may become, deprived of their liberty within the meaning …

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