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Bound to fail

The failure of the deprivation of liberty safeguards has left us with a system worse than the one it replaced, says Katie Underhill

17 March 2016

The European Court of Human Rights case of HL v United Kingdom [2004] ECHR 471 identified what is now known as the Bournewood gap. It highlighted that the rights of those who lacked mental capacity to consent to care or treatment, and who subsequently needed restrictions to be placed on their liberty for their own safety, were not afforded sufficient protection by law.

In response to the Bournewood gap, Deprivations of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act 2005 by the Department of Health in April 2009, through the Mental Health Act 2007 (MHA 2007). DoLS were designed to impose proper safeguards to protect individuals who lack capacity to make decisions about, and consent to, arrangements made for their care and treatment in hospitals and care homes, where there was a need to deprive them of their liberty to protect them from harm.

DoLS provide a statut...

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