The Deprivation of Liberty Safeguards – essential protection or bureaucratic monster?

Consent To Treatment ◽

The Common ◽

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 in fact 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. However, this in turn highlighted the total absence of protection for those patients without capacity who were “de facto detained” under the common law.

The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i13.178 ◽

2014 ◽

Vol 1 (13) ◽

pp. 163

Author(s):

Phil Fennell

Keyword(s):

Mental Health ◽

Common Law ◽

Institutional Care ◽

Mental Capacity ◽

Bodily Integrity ◽

Mental Health Act ◽

European Court ◽

The Common ◽

This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: HL v United Kingdom and Storck v Germany. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.

3. Consent

10.1093/he/9780198871354.003.0003 ◽

2021 ◽

pp. 37-58

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Public Policy ◽

Information Disclosure ◽

Common Law ◽

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Relevant Case ◽

The Common ◽

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

The Mental Capacity Act 2005 and its potential impact on the use of restraint

Psychiatric Bulletin ◽

10.1192/pb.bp.107.016436 ◽

2008 ◽

Vol 32 (4) ◽

pp. 124-126 ◽

Cited By ~ 3

Author(s):

Arthur O. Owino

Keyword(s):

Common Law ◽

Mental Capacity ◽

Best Interest ◽

England And Wales ◽

Time Section ◽

The Common ◽

Potential Impact ◽

Care And Treatment ◽

The staged implementation of the Mental Capacity Act 2005 (further referred to as the Act) began in April 2007 and was completed in October 2007. The Act provides a comprehensive statutory framework for making decisions for people in England and Wales, aged 16 years and over, who lack capacity to make a particular decision at a particular time. Section 5 of the Act codifies the common law doctrine of necessity and provides a defence to anyone who performs an act in connection with the care and treatment of another person – in that person's best interest – reasonably believed to lack capacity in that matter.

Implementing legislative changes on young people's consent to treatment: a guide for trainers

Advances in Psychiatric Treatment ◽

10.1192/apt.bp.110.008185 ◽

2011 ◽

Vol 17 (6) ◽

pp. 454-460

Author(s):

Sarah Huline-Dickens

Keyword(s):

Mental Health ◽

Young People ◽

Mental Capacity ◽

England And Wales ◽

Consent To Treatment ◽

Legislative Changes ◽

Mental Capacity Act ◽

Structured Approach

SummaryThis article reviews the recent changes in the law in England and Wales relating to consent to treatment for young people, in particular the Mental Capacity Act 2005 and the 2007 amendments to the Mental Health Act 1983. Using a fictitious case study, it offers a structured approach to the application of these new items of legislation that could be useful to trainers and their trainees.

Transfer to hospital under the Mental Capacity Act 2005

Psychiatric Bulletin ◽

10.1192/pb.bp.108.023499 ◽

2009 ◽

Vol 33 (12) ◽

pp. 465-467

Author(s):

Clare Stephenson ◽

Robert Baskind ◽

Christopher Harris

Keyword(s):

Common Law ◽

Mental Capacity ◽

Fractured Neck Of Femur ◽

Neck Of Femur ◽

Physical Conditions ◽

The Common ◽

The Government ◽

Mental Capacity Act ◽

Legal Grounds

SummaryThis paper presents the case of an elderly gentleman who sustained a fractured neck of femur following a fall at home but refused to go to hospital. His general practitioner determined that he lacked capacity but ambulance and police crews refused to escort him due to concerns regarding deprivation of liberty.The legal grounds for treating people who lack capacity in emergencies are discussed and the development of the common law into the Mental Capacity Act 2005 is demonstrated. the Mental Health Act 1983 is inappropriate to treat primarily physical conditions, whereas deprivation of liberty cannot be authorised by the Mental Capacity Act 2005 without a means of challenging the lawfulness of the detention. In response, the government has produced Deprivation of Liberty Safeguards, which came into force in April 2009.

3. Consent

10.1093/he/9780198815204.003.0003 ◽

2018 ◽

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Public Policy ◽

Information Disclosure ◽

Common Law ◽

Mental Capacity ◽

Best Interests ◽

Court Cases ◽

Essential Information ◽

The Common ◽

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant court cases, including Gillick, which gave rise to the concept, are cited where appropriate.

Newly introduced deprivation of liberty safeguards: anomalies and concerns

The Psychiatrist ◽

10.1192/pb.bp.109.026831 ◽

2010 ◽

Vol 34 (6) ◽

pp. 243-245 ◽

Cited By ~ 7

Author(s):

Ajit Shah ◽

Chris Heginbotham

Keyword(s):

Mental Health ◽

Human Rights ◽

Mental Capacity ◽

European Convention ◽

Mental Health Act ◽

European Court ◽

Care And Treatment ◽

SummaryThe European Court of Human Rights found that the care and treatment of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper.

Mental Capacity Act 2005: Deprivation of Liberty Form No. 6: Mental Health Assessment

PsycEXTRA Dataset ◽

10.1037/e593052010-001 ◽

2013 ◽

Keyword(s):

Mental Health ◽

Health Assessment ◽

Mental Capacity ◽

Mental Health Assessment ◽

Nutrition in mental health

Oxford Handbook of Nutrition and Dietetics ◽

10.1093/med/9780198800132.003.0032 ◽

2020 ◽

pp. 753-780

Keyword(s):

Mental Health ◽

Eating Disorders ◽

Developmental Disorders ◽

Mental Capacity ◽

Pharmacotherapy, Developmental disorders, Eating disorders, Dementia, Mental Capacity Act 2005

Mental Health Law

A Medic's Guide to Essential Legal Matters ◽

10.1093/med/9780198749851.003.0010 ◽

2018 ◽

pp. 127-140

Author(s):

Anthony Holland ◽

Elizabeth Fistein ◽

Cathy Walsh

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Health Interventions ◽

Family Context ◽

Clinical Settings ◽

Health Law ◽

Legal Basis ◽

Legal Principles ◽

Mental health is everyone’s concern, an idea epitomized by the campaign tag line of the Royal College of Psychiatrists, ‘No Health Without Mental Health’. This chapter will demonstrate how an understanding of a patient’s mental health within his/her social and family context is central to clinical practice. We will consider the legal basis for the treatment of mental ill-health and how it can complicate the treatment of physical illness and lead to ethical and legal concerns. The general legal principles that govern health interventions are explored, and two specific statutes for England and Wales—the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007)—are both considered in some detail. It will be shown how a sound appreciation of the clinical issues, an understanding of the law, and an ability to apply that law in clinical settings are essential when faced with situations involving mental ill-health.