The bournewood case british law and
The bournewood case british law and
The supervisory body must: set the period of the authorisation, which may not be longer than the maximum period identified in the best interests assessment issue the authorisation in writing, stating the period for which it is valid, the purpose for which it is given, and the reason why each qualifying requirement is met if appropriate, attach conditions to the authorisation, taking account of therecommendations of the best interests assessor appoint someone to act as the person's representative during the authorisation provide a copy of the authorisation to the managing authority of the care home or hospital, the person who is being deprived of liberty and their representative, any IMCA who has been involved and any other interested person consulted by the best interests assessor, and in due course to notify them when a standard authorisation ceases to be in force keep written records. There are refusals if: the authorisation sought is for the purposes of treatment or care covered by a valid and applicable advance decision by the person an advance decision being a decision to refuse treatment at a later date, made in anticipation of not having capacity to make the decision at the time in question , or it would conflict with a valid decision by an attorney or a deputy on their behalf or a relevant decision of the Court of Protection. HL became increasingly agitated. If the outcome of the assessment is that there is an unauthorised deprivation of liberty, then the full assessment process would be completed as if an authorisation had been applied for. For about three months in , Mr L was an in-patient at Bournewood Hospital. It held that he had not, in fact, been detained, and that any detention would have been in his best interests and so lawful under the common law doctrine of necessity. The reason for placing this duty with the managing authority is that it is the hospital or care home which would be at risk of civil or criminal penalties for depriving a person of liberty without authorisation. This is so that all with an interest are aware that the person may not lawfully be deprived of their liberty. This is a significant judgment, largely because of the numbers of patients admitted to hospital in their best interests under the common law. Information required to be given with a request may be specified in regulations. It took the view that Mr L had been detained, and that such detention would only have been lawful under MHA
This might occur for example if the best interests assessor has not been able to contact someone they are required to consult and considers that they cannot reach a judgment without doing so. If the person does not move but the supervisory body changes, for example because of changes in a local authority boundary, the managing authority must apply for a variation of the authorisation, provided that none of the grounds for review are met Part 7 of the new Schedule A1.
Footsteps on the stairs signal the entrance of HL, the autistic man for whom Mr and Mrs E are carers. It held that he had not, in fact, been detained, and that any detention would have been in his best interests and so lawful under the common law doctrine of necessity.
It is for the Secretary of State to make regulations under the new Schedule A1 in relation to English authorisations where the supervisory body is a PCT or local authority in England and for Welsh Ministers to make regulations in relation to Welsh authorisations where the supervisory body is the Welsh Ministers or a local authority in Wales and for the Welsh Ministers to direct a Local Health Board to exercise the functions of a supervisory body Part 12 of the new Schedule A1.
Hl v united kingdom
The managing authority is required to request such a review if it appears to it that there has been such a change in the person's circumstances. If the person is unbefriended, defined in the MCA as having no one to speak for them who is not paid to provide care, a section 39A IMCA will be appointed to support and represent them during the assessment process. In , the House of Lords overturned the ruling that HL's detention had been illegal. Rather than taking him straight to the day centre as normal, the driver took a different route, collecting others on the way. If the best interests assessment appears to be reviewable the supervisory body must obtain a best interests review assessment unless the only ground for review is variation of conditions and the change in circumstances is not significant, in which case it can vary the conditions as appropriate. It is the duty of the supervisory body to give the authorisation if all of the assessors recommend it. This means that a person who is subject to the Act but who is not in hospital could be subject to an authorisation under these new provisions. If the best interests assessment recommends authorisation, the assessor must state the maximum authorisation period which may not be for more than one year. In carrying out the best interests assessment, the assessor must consult the managing authority of the hospital or care home. This will inevitably call for a judgment on the part of the relevant decision-maker. The supervisory body are then required to notify the managing authority of the relevant hospital or care home, the relevant person, any section 39A IMCA and any interested person consulted by the best interests assessor.
He had been admitted informally, using a clause in the Mental Health Act under which the hospital simply had to argue that it was in his "best interests" - and as HL cannot speak, he was unable to object.
If a person already has a paid representative appointed because there was no one suitable among family and friends to act as representative, they will not also be able to receive a section 39D IMCA.
Examples of deprivation of liberty
Deprivation of liberty in other settings would be lawful if it were a consequence of giving effect to an order of the Court of Protection on a personal welfare matter, in accordance with the provisions of the MCA. This support will be available to help them to understand the authorisation, its purpose and effect and to understand and exercise the review and Court of Protection safeguards. This is a significant judgment, largely because of the numbers of patients admitted to hospital in their best interests under the common law. If an authorisation is granted, the supervisory body will appoint a person to be the relevant person's representative as soon as practicable Part 10 of the new Schedule A1. With their children grown up, the couple had decided to open their home to someone who needed it. The supervisory body must inform the hospital or care home management, the person concerned, any section 39A IMCA appointed and all interested persons consulted by the best interests assessor of the decision and the reasons. The deprivation of liberty authorised must also be: in the best interests of the person necessary in order to prevent harm to him or her, and a proportionate response to the likelihood of suffering harm and the seriousness of that harm the best interests requirement. Rather than taking him straight to the day centre as normal, the driver took a different route, collecting others on the way. It is the responsibility of the supervisory body to appoint assessors who are eligible and who are suitable, having regard to the person to be assessed. When the review is complete, the supervisory body must inform the managing authority of the hospital or care home, the relevant person and their representative. An urgent authorisation can only last for a maximum of 7 days unless in exceptional circumstances it is extended to 14 days by the supervisory body.
Inthe House of Lords overturned the ruling that HL's detention had been illegal.
based on 34 review