The 'Bournewood Gap' and the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005

Abstract
The Deprivation of Liberty Safeguards (DOLS) were recently introduced into the Mental Capacity Act (MCA) via an amendment to mental health legislation in England and Wales. As Shah (2011) discusses, the rationale behind creating these protocols was to close what is commonly referred to as the ‘Bournewood gap’; a legislative loophole that allowed a severely autistic man (H.L.) who did not initially dissent to admission to be detained in a hospital and deprived of his liberty in his ‘best interests’ as judged by his clinical team. Before the implementation of the DOLS, patients who lacked the capacity to consent to admission or treatment but who were nonetheless compliant could be admitted informally and treated as ..
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    Ajit Shah (2011). The Pragmatic Aspects of Assessing Mental Capacity. Philosophy, Psychiatry, and Psychology 18 (2):133-134.
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