The Mental Health Act 2003 (as amended)[1] permits the deprivation of liberty of a person on the basis of ‘disability of the mind’. This is clearly in breach of the article 14 (1) (a) requirement that ‘disability shall in no case justify a deprivation of liberty’.
There are significant problems with the implementation of the ‘safeguards’ in the Mental Capacity Act 2005 (MCA)[2] which permits deprivation of liberty on the basis of a lack of mental capacity. A 2014 post-legislative scrutiny report on the Mental Capacity Act 2005[3] shows that it has suffered from a lack of awareness and a lack of understanding, but also that the safeguards are not well understood and are poorly implemented: ‘Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’[4]
[1] http://www.legislation.gov.uk/ukpga/2007/12/contents
[2] http://www.legislation.gov.uk/ukpga/2005/9/contents
[3] ‘Mental Capacity Act 2005: post-legislative scrutiny’ House of Lords, HL Paper 139, 2014: http://www.parliament.uk/business/committees/committees-a-z/lords-select/mental-capacity-act-2005/
[4] ‘Mental Capacity Act 2005: post-legislative scrutiny’, p. 7.
