Errors and omissions in deprivation of liberty authorisation forms
Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the impact of errors and omissions in the forms required to lawfully authorise a deprivation of liberty under the Mental Health Act 2005
Article 5 of the European Convention on Human Rights provides for a limited right to liberty and security of person (Council of Europe, 1950).
This is incorporated into the Human Rights Act 1998. Article 5 states that:
‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (e) the lawful detention of persons …. of persons of unsound mind ….’
Human Rights Act 1998, schedule 1, Part 1, article 5
In England and Wales, the Mental Capacity Act 2005 sets out an Article 5-compliant procedure that authorises the deprivation of liberty of a person who lacks capacity.
Section 4A of the Mental Capacity Act 2005 states that the Act does not provide general authority to deprive a person of their liberty. There are two exceptions. A person can deprive another of their liberty if:
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