Government proposals to close the 'Bournewood gap' in mental health law fail to satisfy basic human rights standards, the Law Society warned last week.

The gap is so called in the wake of the European Court of Human Rights' 2004 decision in HL v UK and relates to people who lack capacity to consent and need to be detained and cared for in a hospital or residential care home.


Health minister Rosie Winterton announced that it will be unlawful to deprive such a person of their liberty without the authorisation of the relevant primary care trust (in the case of a hospital), local authority (in the case of care home) or, in Wales, the National Assembly.


They will have to commission assessments - for example, from social workers - on whether the deprivation of liberty is the best option, with family, friends and carers consulted, or an independent advocate if there is none. There must be a review within a year at most, while there will be a right of appeal at any time to the Court of Protection.


Law Society President Kevin Martin said these people, who will be detained under the Mental Capacity Act 2005, will have fewer safeguards than those detained under the Mental Health Act 1983.


He said: 'People detained under the Mental Capacity Act will not have the right to free aftercare, no second opinion from a doctor, and relatives will not be able to discharge a patient. The Court of Protection is not a suitable body to hear appeals because it lacks expertise in authorising detentions and does not have sufficient resources to deal with the increase in workload.


'Being able to detain people for up to one year is too long and is, in fact, double the length of detention orders under the Mental Health Act. The Mental Capacity Act will now become a detaining Act rather than empowering people who lack capacity, and this could undermine the widespread support for this legislation.'


The concerns were echoed in a joint statement by the Mental Health Alliance and Making Decisions Alliance, which said the plans do not provide enough safeguards and that mental health review tribunals are better placed than the Court of Protection to make decisions on care.


The alliances said safeguards should include people being assessed by two doctors and a social worker, a six-month upper limit on reviews, and access for all to an independent advocate.