Bournewood gap

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A legal loophole that has enabled adults without mental capacity but who are compliant to be hospitalized and treated for psychiatric problems without the procedural safeguards offered by the Mental Health Act 1983. The European Court of Human Rights has ruled that such practice violated a patient's right to liberty (HL v UK App no 45508/99 (2004) 40 EHRR 761). As a result the Mental Capacity Act 2005 has been amended to provide a new framework intended to apply to all hospitals and care homes wherever an adult who lacks capacity is deprived of his liberty. In such cases authorization to deprive such a patient of liberty must be sought from either the relevant local authority or NHS Primary Care Trust, who will then carry out various assessments to determine whether such a deprivation is in the patient's best interests.

Subjects: Law.

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