Abstract
The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the <em>Mental Capacity Act 2005</em>, are still commonly referred to as the “Bournewood safeguards,” but in fact the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the <em>Bournewood</em> case. It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act. However, this in turn highlighted the total absence of protection for those patients without capacity who were “<em>de facto</em> detained” under the common law.
Highlights
Winter 2009 with Article 5 of the ECHR.[3]
The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the Mental Capacity Act 2005, are still commonly referred to as the “Bournewood safeguards,” but the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the Bournewood case
It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act
Summary
The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the Mental Capacity Act 2005, are still commonly referred to as the “Bournewood safeguards,” but the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the Bournewood case. Nor did most of them have family, friends or social workers outside who could safeguard their interests, and as they had no right of appeal to a tribunal they could not benefit from the post-1983 extension of Legal Aid to tribunal hearings, which was fuelling an explosion of legal activity in respect of those who were formally detained. One such patient was HL, who had been at Bournewood Hospital in Surrey since 1962. Safeguards, for the British Association of Social Workers; consultant to Peter Edwards Law (Solicitors)
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