Thank you for your letter of 23 November to Alan Johnson regarding the Mental Capacity Act 2005 Code of Practice and, in particular, the draft guidance relating to the deprivation of liberty (formerly known as Bournewood) safeguards, which has recently been the subject of a 12 week consultation process.

You raise three main issues in your letter and I will deal with each of these in turn.

No requirement for a formal medical assessment before an urgent deprivation of liberty authorisation is granted

The Government considers that the arrangements for giving urgent authorisation are compliant with Article 5 of the ECHR. The urgent authorisation process follows a statutory procedure and is subject to procedural safeguards.

An urgent authorisation can only be granted when the managing authority, making a best interests decision in accordance with the Mental capacity Act 2005, believes the need to deprive a person of their liberty is so urgent that it is appropriate to do so before the standard authorisation process can be completed. This means that there will have been an assessment of the person's capacity in accordance with the principles and requirements set out in the Mental Capacity Act 2005. In addition, the Code of Practice states that it is good practice for a health professional to record any assessment of capacity.

It is also probable that an assessment of a person's mental health will have taken pace prior to the urgent authorisation. It will have to take place as part of the request for the standard authorisation within the period of the urgent authorisation.

An urgent authorisation can only be given if the managing authority is required to make, or has made, a request for a standard authorisation. Urgent deprivation of liberty authorisations are designed to deal with unexpected situations, and should only be given in exceptional circumstances. The standard authorisation process must be completed within the period for which the urgent authorisation is given. An urgent authorisation can be granted for a maximum of 7 days. In exceptional circumstances provided for in legislation, a supervisory body may extend this period for up to a further 7 days. When the request for the standard authorisation is granted or refused, the urgent authorisation ceases.

A managing authority must make a request for a standard authorisation where it appears to it (amongst other conditions not relevant here) that the person is likely to meet all the qualifying requirements. These requirements include the mental capacity and the mental health assessments. This means that the managing authority must have a reasonable belief that the person in respect of whom the urgent deprivation of liberty authorisation is given will meet all the qualifying requirements, including those relating to mental health and mental capacity, that would enable a standard authorisation to be given.

Further, the legislation includes the following procedural safeguards to ensure compliance with Article 5 of the ECHR:-

• it specifies who can authorise the urgent deprivation of liberty,
• it specifies the criteria that must be met for deprivation of liberty to be authorised,
• the urgent authorisation must be given in writing for a specified time period of up to 7 days (extendable to 14 days by the supervisory body in exceptional circumstances),
• the managing authority must record in writing their reasons for giving an urgent authorisation,
• a standard authorisation must be obtained after a process of assessment against the qualifying requirements within the period of the urgent authorisation,
• the urgent authorisation can be challenged in the Court of Protection.

The absence for the deprivation of liberty safeguards of a statutory power to take and convey someone to a hospital or care home

The Government considers that the conveyance of a person who lacks capacity to consent from their home, or another location, to a hospital or care home would not usually amount to a deprivation of liberty. In many cases there would be no intention to deprive the person of liberty at the time the conveyance took place, for example admission to hospital by ambulance in an emergency. Even where there was an expectation that the person would be deprived of liberty within the care home or hospital, we think it unlikely that the journey itself would be of a nature or sufficient duration to constitute a deprivation of liberty. We believe, therefore, that in almost all cases a person could be lawfully conveyed under the wider provisions of the Mental Capacity Act 2005 if it is considered to be in their best interests to be in the hospital or care home.

Dealing first with the majority of cases, the best interests principle would apply to conveying in the same way that it applies to any other act done under the Mental Capacity Act 2005. This would involve the consideration of best interests in deciding whether to convey someone, regardless of whether or not the conveyance took place before or after the deprivation of liberty assessment process had been undertaken.

A deprivation of liberty is more likely to arise in respect of acts subsequent to the conveying, for example by keeping the person in the hospital or care home in a totally restrictive manner. But the deprivation of liberty authorisation process already carries with it adequate safeguards around the assessment of, and rights to challenge, any such deprivation of liberty. The key issue is whether the person should be deprived of liberty in the care home or hospital and the safeguards that are being put in place to protect the person's human rights in this respect.

In practice, many people who will become subject to the proposed Mental Capacity At 2005 deprivation of liberty safeguards will already be accommodated in hospitals or care homes at the time that a change in their care regime brings them within the scope of the safeguards, so the conveying issue will not arise.

The Government does accept, however, that, in a very few cases, there may be exceptional circumstances, for example where it is necessary to do more than persuade or restrain the person for the purpose of conveyance, or perhaps if the journey was exceptionally long, where transportation may amount to a deprivation of liberty and it may be necessary to seek an order from the Court of Protection where additional consideration of the particular circumstances of the case would be an extra protection for the individual. We do not consider it necessary for the deprivation of liberty safeguards to cover these rare cases.

Interaction between the Mental Health Act 1983 and the Mental Capacity Act 2005

It is Government policy that, if the authorisation would be for mental health treatment in hospital and the person objects to being in a hospital, or to all or part of the treatment, then the deprivation of liberty safeguards procedures should not be used if the Mental Health Act 1983 could be used instead (except in a case where a donee of Lasting Power of Attorney or a deputy appointed by the court, operating within their powers, consents on the person's behalf to the admission or treatment to which they object). This is in order to treat a person who lacks capacity to consent to medical treatment, and who appears to object to such treatment, in as equivalent a way as possible to a person who has capacity and who objects.

It is also Government policy that it would not be appropriate to extend the provisions of the Mental Health Act 1983 regarding detention for treatment to cover care homes. So, within a care home setting, there is no equivalent comparison between people with capacity detained under the Mental Health Act 1983 and people who lack capacity.

We do believe, however, that there may be circumstances in which a person who lacks capacity to consent to the arrangements being made for their care may need to be deprived of their liberty in a care home in their own best interests, even though they object or appear to object. This could only occur if done in accordance with the provisions of the Mental Capacity Act 2005.

A person could only be detained in this way if it was in the best interests of the person for them to be accommodated in a care home. Best interests requires that the deprivation of liberty be a proportionate response to the risk of harm to the person, and that regard be had to any other way of meeting the person's needs that is less restrictive of the person's rights and freedom of action.

I would mention that your reference to paragraph 84 of the draft illustrative code appears to relate to an earlier version of the deprivation of liberty safeguards Code guidance than the one that was put out for consultation. The latter can be accessed through the following link:-

http://www.dh.gov.uk/en/Consultations/closedconsultations/DH_078052

Paragraphs 3.59 to 3.70 of this document cover the eligibility assessment, which is aimed at identifying whether detention under the Mental Health Act 1983 would be ore appropriate than the use of the deprivation of liberty safeguards of the Mental Capacity Act 2005.

We will, as part of our further work following the completion of the consultation period, consider to what extent we need to revise and clarify the draft deprivation of liberty safeguards Code of Practice guidance in respect of the points you have raised. I think, in particular, we do need to include something about the importance of considering the impact of any transportation as part of assessing best interests, which is not covered at the moment.

Finally, I can confirm that the Government believes that all aspects of the deprivation of liberty safeguards legislation that has been introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007 are fully compliant with Article 5 of the European Convention on Human Rights.