Plugging the "Bournewood" Gap - The Government's Response to Consultation.Originally published The Government has recently1 published its response to the Consultation on the appropriate new safeguards to protect people who lack capacity following the Bournewood case. The Government has proposed a regime of protective care for so called Bournewood patients, namely those who lack capacity but are not detained de·tain tr.v. de·tained, de·tain·ing, de·tains 1. To keep from proceeding; delay or retard. 2. To keep in custody or temporary confinement: under the Mental Health Act. The Government has already announced that it proposes to address these issues by amending the Mental Capacity Act2 It is hoped that protection will be provided whilst keeping bureaucracy to the minimum. In response to the Consultation the Government has announced: There will be formal authorisation to deprive de·prive v. 1. To take something from someone or something. 2. To keep from possessing or enjoying something. an individual of liberty. This will be provided by the Local Authority in respect of a resident in a Care Home, and by the relevant PCT (Private Communications Technology) A protocol from Microsoft that provides secure transactions over the Web. See security protocol. for a Hospital resident. To deprive incapacitated in·ca·pac·i·tate tr.v. in·ca·pac·i·tat·ed, in·ca·pac·i·tat·ing, in·ca·pac·i·tates 1. To deprive of strength or ability; disable. 2. To make legally ineligible; disqualify. people of their liberty (other than in Hospitals and Care Homes) will require prior authority from the Court of Protection. It will be based on assessments of the need for the person to be cared for or treated in circumstances which amount to a deprivation DEPRIVATION, ecclesiastical Punishment. A censure by which a clergyman is deprived of his parsonage, vicarage, or other ecclesiastical promotion or dignity. Vide Ayliffe's Parerg. 206; 1 Bl. Com. 393. of liberty. Mandatory consultation with the relatives, friends and carers will be required. Those individuals will be entitled en·ti·tle tr.v. en·ti·tled, en·ti·tling, en·ti·tles 1. To give a name or title to. 2. To furnish with a right or claim to something: to a copy of the authorisation to deprive of liberty. Primarily legislation will specify who can deprive a person of their liberty and in what circumstances. It will set out the main safeguards although the detail will be covered in Regulations and a Code of Practice. Those placed in Care Homes as a result of a private arrangement will expressly be within the scope of the Bournewood provisions. The Government does not intend to provide a clear definition of "deprivation of liberty", rather the Code of Practice will provide detailed guidance on the factors to be taken into account when considering whether an individual is or needs to be deprived of their liberty. Appeals against deprivation of liberty may be made to the Court of Protection. Incapacitated persons will be entitled to have a suitable person appointed to act as their representative who will be able to bring proceedings on their behalf before the Court of Protection. If a suitable person is not available amongst the individual's relatives, friends and carers then an independent person will be appointed by the relevant Local Authority (for Care Homes) or the relevant PCT (for those receiving healthcare). The proposal that disputes regarding detention should be referred to a Reviewing Officer as part of a "first tier" review has been rejected on the grounds this might interfere with Human Rights. Review will therefore be subject to an application to the Court of Protection by way of appeal, although there will also be the possibility of a "review" which may be requested by the incapacitated person's representative. The Government does not propose to confer new powers on the Mental Health Act Commission, Healthcare Commission The Healthcare Commission is an independent body, set up to promote and drive improvement in the quality of healthcare and public health in England and Wales. It aims to achieve this by becoming an authoritative and trusted source of information and by ensuring that this or CSCI (Computer Software Configuration Item) A group of software treated as a single entity by a configuration management (CM) system. See configuration management. CSCI - Computer Software Configuration Item as it considers their existing powers are sufficient to review issues arising. Having recently announced that the Government will be amending the Mental Health Act to update this (rather than bringing forward an entirely new Mental Health Bill), we now await AWAIT, crim. law. Seems to signify what is now understood by lying in wait, or way-laying. the draft Amendment which will be the subject of a further Briefing in due course. Footnotes 1 Published June 2006: "Protecting the Vulnerable: The "Bournewood" Consultation. 2 Not yet in force but anticipated to come into force in April 2007. [c] RadcliffesLeBrasseur The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Mr Andrew Parsons Andrew Parsons (July 22, 1817–June 6, 1855) was a politician from the U.S. state of Michigan. Early life in New York Parsons was born in Hoosick, New York. RadcliffesLeBrasseur 5 Great College Street Westminster London SW1P 3SJ UNITED KINGDOM Tel: 72227040 Fax: 72226208 E-mail: Sarah.huseyin@rlb-law.com URL URL in full Uniform Resource Locator Address of a resource on the Internet. The resource can be any type of file stored on a server, such as a Web page, a text file, a graphics file, or an application program. : www.rlb-law.com Click Here for related articles (c) Mondaq Ltd, 2006 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com |
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