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Mental Capacity and Deprivation of Liberty

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

The purpose of the project was to consider how the law should protect people who lack capacity to consent to their care or treatment and need to be deprived of their liberty in order to receive that care or treatment. Article 5 of the ECHR provides that everyone has the right to liberty and security of the person. No one may be deprived of liberty except in six specified cases, including the detention of “persons of unsound mind” in accordance with a procedure prescribed by law. If a person is deprived of liberty, certain safeguards must be provided; these include entitlement to take proceedings by which the lawfulness of the detention is decided speedily by a court, and the person’s release  if the detention is not lawful.