Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights
Date:
2004
Catalogue details

Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

    62/76 (page 58)
    The Joint Committee on the Draft Mental Incapacity Bill identified the authorisation of the use of force against a person lacking capacity or the restriction of such a person’s liberty of movement as a problematic feature of the draft Bill. It said “where force or restriction of the person’s movement is permitted, the Bill contains no requirement for the risk of serious harm to be immediate, which would justify emergency action being taken.” It noted the possibility of this giving rise to detention of incapacitated persons in contravention of the HRA.’ It recommended that the relevant clause be redrafted to specify that detention can only be justified in a situation of urgency (including an emergency) and that the period of detention should be as short and least restrictive as possible. The Government in its Response said “We are undertaking further work in relation to [clause 6] and the use of force and restriction of liberty. Bearing in mind ECHR rights, the Government agrees that detention should be as short and least restrictive as possible. We want to capture that requirement in the Bill whilst allowing the care of people with particular needs to continue without undue restriction” .° It appears to the Committee, on its initial consideration, that Clauses 5 and 6 of the Bill in its current form still give rise to the same concern, because they contemplate deprivation of liberty without any medical opinion being obtained, and without any provision confining such deprivation to emergency situations. Although clauses 5 and 6 contain important safeguards against the inappropriate use of restraint, the combined effect of the two clauses appears to be to authorise (in the sense of protect against liability for) the use of force or the threat of force to overcome an incapacitated person’s resistance in certain circumstances, or restrict their liberty of movement, in order to avert a risk of harm. For example, the power in clause 5 could be used to secure the admission into hospital of a person lacking capacity who is resisting such admission, where the person using or threatening force reasonably believes that the person lacks capacity in relation to his treatment, that it is in his best interests for him to be admitted to hospital for treatment and that it is necessary to admit the person in order to prevent harm to himself. Without express limitation on the face of the Bill, the Committee is concerned that these provisions are likely to lead to deprivations of liberty which are not compatible with Article 5(1) ECHR, because they do not satisfy the long established requirements that deprivations of liberty be based on objective medical expertise and are necessary in the sense of being the least restrictive alternative. The Bill as drafted therefore does not appear to contain sufficient safeguards against arbitrary deprivation of liberty. Question 1: Why has the Government not adopted the recommendation of the Joint Committee that the use or threat of force or other restriction of liberty of movement be expressly confined to emergency situations? Question 2: What are the Government’s reasons for saying that the Bill is compatible with Article 5(1)(e) ECHR when its provisions enable deprivation of liberty without being based on objective medical expertise? Clauses 5 and 6 of the Bill could therefore be relied on to authorise the use of force to make an informal admission to hospital of a person who lacks capacity to make decisions about their treatment and is resisting admission to hospital for treatment, and thereby deprive the person lacking capacity of the procedural safeguards which apply when they 4 Joint Committee Report para. 132 5 Government Response, R 43